Free Reply - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) Adam Lang (#022545) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 [email protected] [email protected] [email protected] Attorneys for Plaintiff and Counterdefendant Meritage Corporation and Third Party Defendants Steve Hilton, John Landon, and Larry Seay IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation, Case No. CV-04-0384-PHX-ROS Hancock-MTH Builders, Inc., an Arizona corporation, Hancock-MTH Communities, Inc., an MERITAGE'S REPLY IN Arizona corporation, and currently d/b/a Meritage SUPPORT OF BILL OF COSTS Homes Construction, Inc., an Arizona corporation, AND RESPONSE IN OPPOSITION and Meritage Homes of Arizona, Inc., an Arizona TO MR. FRISBEE'S MOTION TO corporation, DEFER IMPOSITION OF SANCTIONS Plaintiffs, -ANDv. MERITAGE'S MOTION TO Ricky Lee Hancock and Brenda Hancock, STRIKE SECTION 2 IN ITS husband and wife; Gregory S. Hancock and ENTIRETY FROM MR. FRISBEE'S Linda Hancock, husband and wife, Rick OBJECTION TO BILL OF COSTS Hancock Homes L.L.C., an Arizona limited AND MOTION TO DEFER liability company; RLH Development, L.L.C., IMPOSITION OF SANCTIONS an Arizona limited liability company; and J2H2, L.L.C., an Arizona limited liability company, (Assigned to the Honorable Roslyn O. Silver) Defendants. Greg Hancock, an individual, Defendant, Counter-Claimant, and Third Party Plaintiff, v. Steven J. Hilton, an individual; John R. Landon, an individual; Larry W. Seay, an individual; and Snell & Wilmer, L.L.P., an Arizona professional corporation, Third Party Defendants.

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

Document 275

Filed 02/16/2006

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Plaintiff Meritage ("Meritage") hereby replies to defendant Greg Hancock's and counsel Robert Frisbee's Objection to Bill of Costs and Motion to Defer Imposition of Sanctions ("Objection") and moves this Court to strike Section 2 in its entirety from the Objection. On January 18, 2006, this Court emphasized that "[t]he Court finds pursuant to its inherent powers that Mr. Frisbee did act in bad faith, and as such, will impose sanctions including costs, expenses, and attorney's fees reasonably incurred by Meritage in pursuing and challenging his failure to comply with the Court's Dismissal Order." (See January 18, 2005 Order at 11:6-9.) Accordingly, as ordered, Meritage submitted a Bill of Costs to this Court on January 27, 2006. As of that date, Meritage incurred $15,799.00 in total fees, costs, and expenses in pursuing Mr. Frisbee's compliance with this Court's April 26, 2005 Order mandating Mr. Frisbee to dismiss Mr. Hancock's complaint in Arizona Superior Court. Since then, Meritage has incurred or will incur an additional $3,500.00 in fees, costs, and expenses replying to the Objection, moving to strike portions of it, and in preparing for and participating in any oral argument stemming from it. In the Objection, Mr. Frisbee acknowledges that Meritage has reasonably incurred and is entitled to $7,576.50 in pursuit of compliance with the dismissal order; therefore, nearly one-half of the amount of fees, costs, and expenses requested by Meritage is not in dispute. Mr. Frisbee contends, however, that the remaining $8,222.50 is excessive.

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Snell & Wilmer L.L.P.

Despite Mr. Frisbee's unsupported assertions to the contrary, Meritage's entire Bill of Costs is wholly reasonable. Moreover, Mr. Frisbee, for at least the third time after not raising it for seven months, requests that this Court reconsider Mr. Frisbee's AntiInjunction Act Argument. This Court has already considered this argument; it has been ruled on in favor of Meritage and the time to argue it has already passed. It is simply inappropriate, in the Objection ­ a responsive pleading to the Bill of Costs ­ to raise that issue. Accordingly, Meritage moves the Court to strike Section 2 of the Objection.

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I.

Response to the Objection to the Bill of Costs. A. The Attorneys' Fees, Costs, and Expenses Incurred by Meritage Were Reasonable.

A "reasonable fee" includes work that "`would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest.'" Schweiger v. 5 China Doll Restaurant, 138 Ariz. 183, 188, 673 P.2d 927, 932 (App. 1983) (citing Twin 6 City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982)), cert 7 denied, 459 U.S. 1009, 103 S. Ct. 364 (1982)). In Schweiger, the court held that the 8 reasonableness of a fee request depends on whether (1) the billing rate used was 9 reasonable and (2) the number of hours expended on the case was reasonable. Id. The 10 best indication of what a reasonable billing rate is under the circumstances of a particular 11 case is the rate agreed to by the client and the lawyer. Id. at 187-88, 673 P.2d at 931-32.
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 Here, Meritage has agreed to pay the billing rate provided in Snell & Wilmer's billing 13 statements. (See Declaration of Dan W. Goldfine ("Goldfine Dec."), Ex. 1, at ¶ 4.) The 14 billing rates charged by Snell & Wilmer are reasonable for commercial litigation attorneys 15 in Maricopa County. (See Goldfine Dec., Ex. 1, at ¶ 5.) 16 As detailed in the summary of billings attached to the Bill of Costs, the actions 17 taken by Meritage's counsel were those that, as required under Schweiger, "would have 18 been undertaken by a reasonable and prudent lawyer to advance or protect his client's 19 interest" in the case. Schweiger, 138 Ariz. at 188, 673 P.2d at 933. On April 26, 2005, 20 this Court ordered Mr. Frisbee to dismiss his complaint in Arizona Superior Court within 21 ten days. Despite this clear and unequivocal order nearly ten months ago, Mr. Frisbee 22 has refused to dismiss Mr. Hancock's state court lawsuit. Accordingly, Meritage has had 23 no other choice but to diligently pursue appropriate vehicles to bring about the end of the 24 state court action and the potential liability arising therefrom. Meritage's counsel has both 25 efficiently and competently litigated towards that goal. 26 incurred by Meritage in pursuit of Mr. Frisbee's compliance with the dismissal order, 27 Meritage incurred less than $20,000.00 in fees, costs, and expenses resulting from 28
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Snell & Wilmer L.L.P.

Strictly limited to the costs

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

intensive research, analysis, and preparation of multiple briefs and the strategizing, preparation, and participation in oral arguments pertaining to pursing compliance with the dismissal order. Courts have recognized that reasonable fees include not only fees for attorneys' services, but also for the services of legal assistants, including paralegals and law clerks. Cont'l Townhouses E. Unit One Ass'n v. Brockbank, 152 Ariz. 537, 544, 733 P.2d 1120, 1127 (App. 1986). Additionally, "computerized research expenses" are included "`as an element of an award of attorneys' fees.'" Ahwatukee Custom Estates Mgmt. Ass'n v. Bach, 193 Ariz. 401, 403-04, 973 P.2d 106, 108-09 (1999) (quoting In re Azstar Cas. Co., 189 Ariz. 27, 28, 938 P.2d 76, 77 (App. 1996)). Meritage incurred paraprofessional fees of $1,464.00 and legal research expenses of $1,275.00 in pursuing Mr. Frisbee's compliance with the dismissal order. (See Summary of Billings, attached as Ex. A to Bill of Costs.) In total, up until and including January 27, 2006, Meritage incurred $15,799.00 in fees and costs in the attempt to gain compliance from Mr. Frisbee with this Court's dismissal order. (See id.) Since then, Meritage has incurred or will incur an additional $3,500.00 in fees and costs. (See Goldfine Dec., Ex. 1, at ¶ 7.) All fees incurred or that will incur were the direct result of attempting to ensure dismissal of the state court action and thus are reasonably owed to Meritage. B. None of the Specific Tasks Delineated by Mr. Frisbee in Exhibit A to the Objection Were Excessive.

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Snell & Wilmer L.L.P.

In an attempt to ensure compliance with the dismissal order, Meritage spent only 63.8 hours of attorney and para-professional time as of January 27, 2006. Despite Mr. 22 Frisbee's implicit assertion that this issue did not require the devotion that Meritage spent 23 on it, attempting to obtain compliance with the dismissal order was far from a simple 24 issue. Indeed, Mr. Frisbee contested the Court's Order in this Court and in the Ninth 25 Circuit, by filing multiple and repetitive pleadings and by hiring his own personal 26 attorney. 27 28
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Simplicity can be entirely dependent upon the tactics used by the opposing party. See S & R Properties v. Maricopa County, 178 Ariz. 491, 505, 875 P.2d 150, 164 (App. 1993) (determining reasonableness depends on the tactics of the other side); F.D. Rich Co. v. Indus. Lumber Co. Inc., 417 U.S. 116, 129-30, 94 S.Ct 2157, 2165 (1974) (courts have equitable discretion to award attorney's fees to the party prevailing in litigation against an opponent that purposefully attempts to frustrate the inevitable result.) Every hour spent by Meritage in pursuing Mr. Frisbee's compliance with this Court's dismissal order springs from Mr. Frisbee's consistent and dogged refusal to comply with it. Mr. Frisbee could have prevented the thousands of dollars incurred by both parties, the wasting of limited judicial resources, and the almost ten months spent on this issue had he simply complied with the dismissal order or lawfully requested a stay, provided a supersedeas bond, or sought an order from this Court. Mr. Frisbee instead chose ­ and continues to choose ­ to defy the Court's Order and clearly established rules of procedure. Meritage responds to Mr. Frisbee's specific assertions of excessiveness in Exhibit A to the Objection as follows. Attached to this Reply as Exhibit 2 is a convenient chart this Court can utilize to determine Meritage's response to each specific objection relating to excessiveness. 1. Strategizing, Conferences, and Reviewing Orders and Pleadings.

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Snell & Wilmer L.L.P.

A good portion of Mr. Frisbee's criticisms pertains to the time spent by multiple timekeepers strategizing, conferring, preparing, and reviewing the various orders and pleadings. Such criticism misunderstands clear law. Case law expressly allows these conferences as a means of reaching a successful end for a client. "One of the benefits of law firm representation is the synergistic effect of conferences between various members of the firm." S & R Properties v. Maricopa County, 178 Ariz. 491, 505, 875 P.2d 150, 164 (App. 1993). The attempt of a litigation team to get its hands completely around an issue of law is not unreasonable or excessive; "two heads are better than one." Id. "[C]onsultations among attorneys and paralegals . . . [are] not a needless duplication of
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

effort." Id. It is not unreasonable for attorneys in the same law firm to confer or strategize with one another or with their legal assistants or clients. Id. The actual time expended by Meritage's counsel in strategizing, participating in hearings, conferencing, reviewing, researching, analyzing, and discussing complex issues revolving around the motion for order to show cause, the motion to stay, the petition for writ of mandamus, and the other filings and orders flowing from Mr. Frisbee's refusal to comply with this Court's dismissal order ­ individually and with other attorneys, para-professionals, and clients ­ are therefore wholly reasonable. Further, counsel for Meritage does not show up at hearings of this Court and shoot from the hip. They are well prepared. They analyze all arguments from the opposing side, including arguments that appear frivolous on the face, and attempt not to waste the Court's time by presenting cogent and efficient oral argument. 2. Position Paper.

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Snell & Wilmer L.L.P.

Mr. Frisbee asserts that the work done by Meritage's counsel on the position paper filed on December 9, 2005, was not related to Mr. Frisbee's failure to comply with the Court's order to dismiss the state court action. Mr. Frisbee is mistaken. As the Court has noted, it ordered Meritage to submit the position paper, as a result of the arguments made at the December 7, 2005 show cause hearing. Mr. Frisbee and Mr. Hancock argued through counsel that their failure to comply with the dismissal order was innocent. Meritage rebutted this claim by asserting to the Court that Mr. Frisbee and Mr. Hancock have engaged in a pattern of contempt and bad faith with respect to earlier court orders requiring certification that Mr. Hancock had fully complied with the Court's discovery orders. Instead of relenting with respect to their claim of innocence, Mr. Frisbee stepped into the shoes of his own counsel, replacing the attorney he had hired, and argued that he and Mr. Hancock were "innocent" of any wrongdoing with respect to the Court's certification orders. In fact, counsel for Meritage noted the following in their position paper:

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Meritage believes that Mr. Frisbee and Greg Hancock opened the door to evaluation of this conduct by asserting in both their Response to the Court's Order to Show Cause and in argument before this Court in response thereto that they are not "contemptuous" and that their actions were in good faith. Meritage and its counsel gain no pleasure from detailing this conduct. But when a lawyer and a party, whom have been in plain and notorious contempt of this Court's Order to Dismiss Greg Hancock's claims in State Court, affirmatively avow that they are not "contemptuous" and that they are the only victims of their own misconduct, they open the door to other conduct that reflects on their state of mind. Mr. Frisbee and Greg Hancock have not complied with this Court's Order requiring them to certify their document production and that failure to do so is just another step in a pattern of conduct intended to impede the fair administration of justice in this matter and Meritage's right to its day in court. (See December 9, 2005 Position Paper, attached as Ex. 3, at 4.) At least as to Mr. Frisbee, this Court agreed with Meritage that Mr. Frisbee had acted in "bad faith." Accordingly, the position paper is wholly related to the show cause hearing and the attempt to pursue compliance with the dismissal order. 3. "Review Order to Show Cause".

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Snell & Wilmer L.L.P.

Mr. Frisbee misstates the November 17, 2005 billing entry for Dan W. Goldfine. Mr. Goldfine did more than merely "review" the order. He read it, analyzed the assertions made by this Court therein, reviewed the pertinent portions of the case law cited by this Court therein, and outlined a strategy regarding preparing for the show cause hearing. Engaging in all of these tasks in only 36 minutes is certainly reasonable ­ if not incredibly efficient. 4. "Correspondence with Mathew".

Mr. Erickson's entry on November 18, 2005, shows that Mr. Erickson reviewed and analyzed correspondence pertaining to the show cause hearing. Certainly, Mr.

Frisbee cannot contend that these activities are irrelevant. He cannot be claiming in good faith that Mr. Erickson should have ignored correspondence in assisting Mr. Goldfine in preparing for the show cause hearing.

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5.

"Drafting Response to Harrison".

Mr. Frisbee fails to include all of the tasks that Mr. Erickson engaged in on this December 6, 2005 billing entry. Mr. Erickson (1) worked on an outline for the show cause hearing, (2) analyzed and evaluated the Response to Order to Show Cause, (3) worked on a draft reply to the Response to Order to Show Cause,1 and (4) strategized with members of the litigation team regarding the show cause hearing and related matters. Moreover, as noted in Section I.B.1 above, counsel for Meritage diligently prepare for their briefings and hearings of this Court. They analyze all arguments offered by

opposing counsel and attempt to preserve limited judicial resources by presenting the most efficient and clear oral argument as possible. Billing 4.4 hours for the foregoing can hardly be deemed excessive. 6. Preparing Bill of Costs.

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Snell & Wilmer L.L.P.

Contrary to Mr. Frisbee's implication, preparing a bill of costs requires time and effort. Here, it required a diligent search of the hundreds of pages of bills to ensure inclusion of tasks related to pursuing Mr. Frisbee's compliance with the dismissal order, while excluding tasks unrelated. A review for privilege was also essential. Similarly, creating the summary of the billings as well as ensuring accuracy in the calculations was also necessary. Accordingly, the time that Adam Lang and Maureen Zachow spent on behalf of Meritage preparing a comprehensive bill of costs was more than reasonable. 7. Computerized Legal Research.

Meritage is billed at a rate of $5 per minute for computerized legal research. As noted in China Doll above, what is reasonable is determined by what a client is willing to pay. Here, Meritage, like most clients of Snell & Wilmer, is billed at and has agreed to pay $5 per minute for computerized legal research. (See Goldfine Dec, Ex. 1, at ¶ 4.) Accordingly, the rate for computerized legal research is reasonable.

The Response to Order to Show Cause was actually 33 pages long with exhibits, not the 20 pages that Meritage mistakenly asserts in the summary of billings attached with the Bill of Costs.
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Mr. Frisbee also makes the comment that all of the computerized legal research time is charged to Mr. Goldfine ­ the partner in this matter. Any implication by Mr. Frisbee that such a strategy is unreasonable is both unsupported by law and unfounded. Meritage's counsel are certainly allowed to staff their cases to best serve their clients. In fact, Mr. Frisbee provides not a single case in support of his implication that it is inappropriate for a partner to do research. Furthermore, Mr. Frisbee complains that there are charges for computerized legal research included in the Bill of Costs that are not included on corresponding time entries. Counsel for Meritage simply chose to not bill Meritage for their total time researching. Counsel are entitled, as is Mr. Frisbee, not to bill their client for certain tasks. That Meritage's counsel billed Meritage for the cost of computerized legal research and not the entire amount of attorneys' fees associated with the research is nothing more than a matter of client relations and has no import on the submitted Bill of Costs.2 C. Hours Spent by Meritage's Counsel Were Necessary.

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Snell & Wilmer L.L.P.

On April 26, 2005, this Court ordered Mr. Hancock to dismiss his state cause of action within ten days of the Court's Order. But Mr. Hancock did not dismiss the state case within that timeframe ­ and still has not dismissed it nearly ten months later. (The State Court has dismissed all of Mr. Hancock's claims, but Mr. Hancock continues to claim that he intends on appealing the State Court's dismissal.) Instead, Mr. Frisbee filed a procedurally inappropriate Petition for Writ of Mandamus to the Ninth Circuit. To be candid, Meritage's counsel was stunned that the Petition was filed ­ as it blatantly ignored and defied the clear and unambiguous language of the Federal Rules of Appellate Procedure and the Court's April 26, 2005 Order. Mr. Frisbee had various tools at his disposal that would have been appropriate devices had he wanted this Court's order reviewed. First, Mr. Frisbee could have filed a motion for reconsideration to this Court within ten days from the date of the dismissal order. If this Court denied that motion, Mr. If Mr. Frisbee would prefer Meritage to include the additional amount of attorneys' fees that he complains is missing from the time entries, however, Meritage would be more than willing to do so.
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Frisbee could have then sought review of this Court's ruling by interlocutory appeal. But had Mr. Frisbee wanted the Ninth Circuit to review this Court's decision, Mr. Frisbee was required to "move first in the district court for . . . a stay of . . . [an] order of a district court pending appeal." Rule 8(a), Fed.R.App.P. He chose not do any of these things. Instead, as this Court noted, Mr. Frisbee's activities were "done for the obvious purpose of protracting litigation in both federal and state court, [and that] is improper." (See January 18, 2005 Order at 9:5-6.) Accordingly, Meritage had no other choice but to aggressively seek compliance with the Court's dismissal order. As a result, Meritage filed its motion for order to show cause on May 19, 2005, and the briefing that followed it. II. Response to Motion to Defer Imposition of Sanctions and Motion to Strike Section 2 of the Objection. The January 18, 2006 Order specifically requested that Meritage's counsel submit

12 its Bill of Costs within seven days. In compliance with that order, Meritage's counsel 13 submitted its Bill of Costs on January 27, 2006. Despite Mr. Frisbee's baseless and 14 unsupported attempt to defer imposing sanctions until after his motion to withdrawal is 15 ruled upon, this Court's Order did not contemplate such a prerequisite. Mr. Frisbee 16 realizes this but instead attempts to continue his habitual behavior of improperly 17 protracting this litigation in the state and federal court. 18 Section 2 of the Objection is nothing more than a regurgitation of the Anti-Injunction Act 19 argument that has been previously ruled on by this Court as untimely and which has 20 already been raised in Mr. Frisbee's Response to Order to Show Cause and Greg 21 Hancock's Motion for Withdrawal of this Court's May 31, 2005 Dismissal Order. This 22 argument has been considered by the Court in relation to the sanctions that this Court 23 indicated it would levy on Mr. Frisbee. A responsive pleading to an entirely different 24 matter ­ which the Objection is ­ is not the appropriate place to raise this argument. 25 Accordingly, Meritage respectfully moves this Court to strike Section 2 to the Objection 26 in its entirety. 27 28
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Snell & Wilmer L.L.P.

Moreover, the entirety of

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III.

Conclusion. Meritage is entitled to fees, costs, and expenses in the amount of the $15,799.00

incurred as of January 27, 2006. Meritage is also entitled to the $3,500.00 it has incurred or will incur since then. Mr. Frisbee accepts that Meritage is entitled to $7,576.50 of the fees, costs, and expenses requested in its Bill of Costs. The remaining $8,222.50

requested by Meritage in the Bill of Costs and the $3,500.00 in fees incurred or that will incur since are reasonable as well. Additionally, Mr. Frisbee's motion to defer sanctions until after the motion to withdrawal is ruled upon should be denied and Section 2 of the Objection should be dismissed in its entirety. Lastly, Meritage respectfully moves this Court to strike Section 2 to the Objection in its entirety. DATED this 16th day of February, 2006. SNELL & WILMER L.L.P.

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Case 2:04-cv-00384-ROS

Snell & Wilmer L.L.P.

By s/ Adam E. Lang Dan W. Goldfine Richard G. Erickson Adam Lang One Arizona Center Phoenix, AZ 85004-2202 Attorneys for Plaintiff and Counterdefendant Meritage Corporation and Third Party Defendants Steve Hilton, John Landon, and Larry Seay CERTIFICATE OF SERVICE I hereby certify that on February 16, 2006, I electronically transmitted the foregoing 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: Ivan K. Mathew Mathew & Mathew, P.C. 1850 N. Central Avenue, Suite 1910 Phoenix, Arizona 85004 Attorneys for Defendant Rick Hancock

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Defendant Greg Hancock Mark I. Harrison Sarah Porter Osborn Maledon, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2794 Attorneys for Defendant Greg and Linda Hancock and Counsel of Record Robert Frisbee Kenneth J. Sherk Timothy J. Burke Fennemore Craig, P.C. 3003 N. Central Ave. Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendant Snell & Wilmer, L.L.P. in State Court Action s/ Adam E. Lang
1791904

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Snell & Wilmer L.L.P.

Case 2:04-cv-00384-ROS

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