Free Reply in Support of Motion - District Court of Arizona - Arizona

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John E. Karow, SBN 014200 LAW OFFICE OF JOHN E. KAROW 11350 North 104th Place Scottsdale, Arizona 85259 (480) 391-2236 (480)-391-0132 [email protected] Attorneys for Defendants Carl Brown, Molly Brown IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CATHLEEN CHANNEL; THERESA WHARRY; STACIE HANSON; MONIQUE NICHOLS; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 2003-0100 PHX ROS

11 12 13 14 15 16 17 18 19 20 21 22 23 vs. HOME MORTGAGE, INC., an Arizona corporation conducting business in Arizona; CARL BROWN; MOLLY BROWN; GREG BROWN; JANE DOE BROWN; DOES 1-10; XYZ CORPORATIONS; BLACK PARTNERSHIPS; Defendants. _____________________________________

DEFENDANTS' CONTROVERTING STATEMENT OF FACTS AND SEPARATE STATEMENT OF FACTS IN SUPPORT OF THEIR REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT (Assigned to the Hon. Roslyn O. Silver) (Oral Argument Requested)

Defendants Carl Brown and Molly Brown ("Defendants") submit their Controverting Statement of Facts and their Separate Statement of Facts in support of their reply to Plaintiffs' Response to Defendants' Cross-Motion for Summary Judgment. Defendants object to the following paragraphs of Plaintiffs' objections to

24 25 26 27 28 Defendants' Separate Statement of Facts ("SOF") in Support of Defendants' Response: 2. Plaintiffs cite Exhibit 2 to their SOF stating that Carl Brown is listed as

President and CEO of HMI. This exhibit is dated October 2, 2006 and reflects

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changes in the corporation made after Gregory Brown left HMI in September 2004. Gregory Brown was President and CEO during the times relevant to the allegations in the First Amended Complaint. This paragraph ignores the evidence presented in ¶ 2., of Defendants' SOF in support of its Cross-Motion, and ignores the facts as represented by the records of the Arizona Corporation Commission. 8. This objection claims the absence of "specific testimonial evidence" but

does not challenge the accuracy of the bank records and deposition testimony cited in support of this section of Defendants' SOF. 11. This objection alleges a fact but does not in any way dispute the factual

11 12 13 14 15 16 17 during his tenure with the company. This objection contains no language controverting 18 19 20 21 22 23 24 25 26 27 28 time period relevant to the Plaintiffs' claims. 21. The letter referred to in this objection is addressed to counsel for HMI with the factual statements contained in Gregory Brown's Affidavit dated November 29, 2006. 18. 19. See comment to objection to ¶ 13., above. See comment to objection to ¶ 2., above, and raises questions about the statements contained in ¶ 11., of Defendants' SOF. 13. This "objection" mis-states the contents of Gregory Brown's Affidavit

dated March 6, 2006. The Affidavit contains no statement that HMI was "controlled" by the Defendants. The Affidavit contains a description Gregory Brown's duties as President of HMI and describes the financial support provided to HMI by Defendants

propriety of repeatedly referring to state records that cover a period of time after the

respect to a proposed complaint against HMI. There is no mention of any claims against the Defendants. This letter was sent during the time when Gregory Brown was 2 Case 2:03-cv-00100-ROS-MEA Document 116 Filed 01/22/2007 Page 2 of 6

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the President and CEO of HMI and would have been sent to him in that capacity if it was forwarded by the company's counsel. Plaintiffs offer no proof that either of the Defendants received a copy of this letter before its inclusion as an exhibit to the Motion for Summary Judgment on November 9, 2006. Significantly, this letter was not shown to Mr. Brown at either of his depositions. 24. See comment to objection to ¶ 2., 18., 19., above, and raises questions

about the propriety of repeatedly referring to state records that cover a period of time after the time period relevant to the Plaintiffs' claims. Defendants object to the following paragraphs of Plaintiffs' Separate Statement of Facts: Defendants object to paragraphs 1-12, 14-21, 38-41, 43-44, because they are not responsive to the statement of facts and issues contained on the Cross-Motion.

14 15 16 17 18 19 20 Brown was President and CEO during the times relevant to the allegations in the First 21 22 23 24 25 26 27 28 (At her deposition Molly S. Brown testified that the expenses for all personal trips on the Amended Complaint. This paragraph ignores the evidence presented in ¶ 2., of Defendants' SOF in support of its Cross-Motion, and ignores the facts as represented by the records of the Arizona Corporation Commission. 27. This testimony must be evaluated in concert with Molly Brown's testimony 13. This paragraph is not responsive to the Cross-Motion and does not

support Plaintiffs' claims in this matter. 24. Plaintiffs cite Exhibit 2 to their SOF stating that Carl Brown is listed as

President and CEO of HMI. This exhibit is dated October 2, 2006 and reflects changes in the corporation made after Gregory Brown left HMI in September 2004. Gregory

that she reimbursed HMI every time Defendants used the airplane for personal trips.

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HMI airplane were reimbursed to HMI by the Defendants. (October 4, 2006 Deposition of Molly S. Brown, pp. 25-26, EXHIBIT G to Defendants' Statement of Facts filed on December 11, 2006). While Plaintiffs are entitled to press their claims, they are not

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Statement of Facts filed on December 11, 2006). 24 25 26 The Separate Statement of Facts in Support of Defendants' Cross-Motion for 27 28 Summary Judgment is sufficient to support the Reply to Plaintiffs' Response to the 4 Case 2:03-cv-00100-ROS-MEA Document 116 Filed 01/22/2007 Page 4 of 6 Defendants' Separate Statement of Facts in Support of their Reply to Plaintiffs' Response to Defendants' Cross-Motion for Summary Judgment. 32. Mis-represents the facts. Carl Brown testified that he stopped receiving a 29. Mis-represents the facts, Carl Brown denied he was involved with HMI's daily operations during the time Gregory Brown was President and CEO. 30. Mis-represents the facts. Carl Brown testified that he stopped receiving a entitled to deliberately mislead the Court. 28. Mis-represents the time these acts occurred. Carl Brown testified that he

was involved after Gregory Brown resigned as President and CEO. ( October 4, 2006 Deposition of Carl I. Brown, p.115, ll. 16-19., Exhibit C to Defendants' Statement of Facts filed on December 11, 2006.)

salary from HMI in approximately April 2002. (August 4, 2003 Deposition of Carl Brown, p. 25, ll. 17-19, Exhibit B to Defendants' Statement of Facts filed on December 11, 2006.)

salary from HMI in approximately April 2002. See, ¶30., above. 46. This statement is objected to because it is presented out of context and

must be considered in conjunction with the deposition testimony of Molly Brown (October 4, 2006 Deposition of Molly S. Brown, pp. 25-26, EXHIBIT G to Defendants'

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