Free Crossclaim - District Court of Arizona - Arizona

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Dow Glenn Ostlund, Esq. State Bar No. 002909
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys for Tegan Communities, Inc., American West Communities, LLC and Andrew Welch

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Humphreys & Partners Architects, L.P.,
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Plaintiff, No. CIV 03-0169 PHX SMM vs. George F. Tibsherany, Inc.; et al., Defendants. ________________________________________ Tegan Communities, Inc.; American West Communities, L.L.C. and Andrew Welch, Crossclaimants, vs. George F. Tibsherany, Inc.; George F. Tibsherany, Crossdefendants. TEGAN'S REPLY TO COLLIERS AND TENGE'S CROSSCLAIM AND CROSSCLAIM OF TEGAN AGAINST GFT, INC.

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Tegan Communities, Inc. (Tegan) replies to the Crossclaim of Co-Defendant Colliers Iliff Thorn & Co., Inc., d/b/a Colliers International and Jerry Tenge (collectively "Colliers") by admitting, denying and alleging as follows: 1. Admitted. Admitted. Admitted Admitted. The Listing Agreement is the best evidence of its own terms and conditions

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2. 3. 4. 5.

and any of the allegations of Colliers' Crossclaim which are not in strict accordance with that Listing Agreement are denied.

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COUNT I (Indemnity) 6. The allegations of Paragraphs 1 through 5 above of the Crossclaim are

admitted or denied as hereinbefore admitted or denied. 7. The Listing Agreement is the best evidence of its own terms and conditions

and any of the allegations of Colliers' Crossclaim which are not in strict accordance with that Listing Agreement are denied.

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8.

The Listing Agreement is the best evidence of its own terms and conditions

and any of the allegations of Colliers' Crossclaim which are not in strict accordance with that Listing Agreement are denied. 9. Denied. COUNT II (Breach of Warranty)
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10.

The allegations of Paragraphs 1 through 9 of the Crossclaim are admitted or

denied as hereinbefore admitted or denied. 11. The Listing Agreement is the best evidence of its own terms and conditions

and any of the allegations of Colliers' Crossclaim which are not in strict accordance with
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that Listing Agreement are denied. Further, Tegan, through its agents, disclosed the existence of CIV03-0169 PHX-SMM to Colliers, including a disclosure that HPA's Complaint and Amended Complaint included a request for an Injunction preventing Tegan from renting units in the Augusta Ranch Apartments or selling the Augusta Ranch Project to a third party. Colliers was further advised that, despite the claims made by HPA for injunctive relief in the pleadings, HPA had taken no action to actually obtain

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any injunctive relief from the Court. These disclosures impact upon Colliers/Tegan's express or implied warranty of quiet possession and merchantability. 12. 13. Denied. The Listing Agreement is the best evidence of its own terms and conditions

and any of the allegations of Colliers' Crossclaim which are not in strict accordance with that Listing Agreement are denied. 14. Denied.

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Affirmative Defenses. 15. Tegan incorporates by this reference the affirmative defenses and

Counterclaim of the GFT Defendants in this action as and for its own affirmative defenses herein.

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16.

Tegan denies any knowing act of copyright infringement insofar as the

development, ownership, operation of or sale of the Augusta Ranch Project is concerned and denies that it is a direct or contributory infringer of HPA's copyrights. 17. Tegan denies that it is vicariously liable to HPA for any direct act of

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copyright infringement committed by another. 18. Tegan incorporates by this reference its affirmative defenses in response to

HPA's Second Amended Complaint. WHEREFORE, having fully answered the allegations of Colliers' Crossclaim, Tegan demands Judgment as follows: A. That this Court enter its Order that Tegan is not a direct or contributory

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infringer of HPA's copyright protections with respect to Tegan's development, ownership, operation and/or sale of the Augusta Ranch Project. B. An Order of this Court that Tegan is not vicariously liable to HPA for any

alleged copyright infringement committed by another party. C. D. The dismissal, with prejudice, of Colliers' Crossclaim against Tegan. The recovery of Tegan's reasonable attorneys' fees and court costs as

allowed by law.
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E.

For such other and further relief as the Court deems just and proper under

the circumstances. CROSSCLAIM For its Crossclaim against Co-Defendant George F. Tibsherany, Inc. (GFT), Tegan alleges as follows:

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1.

GFT, Inc. is an Arizona corporation, with its principal place of business

located within Maricopa County, Arizona, and the District of this Court. 2. Tegan is an Arizona not-for-profit corporation with its principal place of

business located within Maricopa County, Arizona, and within the District of this Court.
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3.

On or about March 31, 2000, Tegan and GFT entered into that certain

"Standard Form Of Agreement Between Owner and Architect For Housing Services" with respect to a project described thereon as a "238-Unit (five unit types, one building type) plus one recreation/office building, pool/ramada area, attached garages in Mesa" (the contract). COUNT I

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(Breach of Contract) 4. The allegations of Paragraphs 1 through 3 above are incorporated herein by

this reference as though fully reproduced hereat. 5. The contract, at Article 6.1, provides that, unless otherwise provided, the

architect (GFT) is deemed to be the author of the drawings, specifications and other documents provided by the architect under the contract and that the architect shall retain all common law, statutory and other rights, including the copyright, to all such work.

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6.

Plaintiff HPA claims that GFT infringed HPA's existing copyright

protections when GFT prepared the drawings, specifications and other documents GFT prepared for Tegan pursuant to the contract. 7. GFT denies that it has committed any act of infringement as alleged by

HPA in HPA's Complaints filed in this action and has filed its own Counterclaim against

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HPA alleging that HPA's alleged copyright protected works themselves are an infringement of GFT's copyright protected works. 8. If HPA is correct, and GFT did infringe HPA's copyright protections, then

GFT will have breached its contract with Tegan.
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9.

If HPA is correct and GFT did infringe HPA's copyright protected

materials, and Tegan is found liable to HPA for an infringement of HPA's copy right protections, GFT will have breached its contract with Tegan. 10. Tegan is entitled to recover from GFT all damages suffered by Tegan as a

direct result of GFT's breach of its contract with Tegan, whether such damages are incurred in favor of HPA, Colliers, ICON Builders or other persons or parties who are

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presently, or have previously been, parties in this litigation. 11. This action arises out of an express contract and, accordingly, Tegan is

entitled to recover its reasonable attorneys' fees and court costs incurred in connection with its defense of the claims made against it in this action, as well as its prosecution of its Crossclaims against Cross-Defendants in this action, together with its costs and interest as allowed by law. WHEREFORE, Tegan demands judgment against Cross-Defendant George F.

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Tibsherany, Inc. as follows: F. If the GFT Defendants are found to have infringed any of HPA's copyright

protected works, GFT will have breached its contact with Tegan and, accordingly, Tegan is entitled to an Order of this Court declaring that GFT has breached its contract with Tegan.

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G.

In the event GFT has breached its contract with Tegan, and Tegan suffers

damages thereby, whether in the form of a Judgment imposed against Tegan by HPA, Colliers, ICON Builders, etc., then such damages form the basis of Tegan's damages claim and award against GFT.

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H.

A Judgment of breach of contract, or in the alternative, for indemnity,

against GFT and in favor of Tegan in an amount equal to all of the Judgments entered herein, if any, against Tegan. I. The recovery of Tegan's reasonable attorneys' fees and court costs incurred

in connection with its defense and/or prosecution of its Crossclaims in connection with this matter, together with interest thereon at the highest lawful rate available from the

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date of the entry of such Judgment until fully paid. J. For such other and further relief as the Court deems just and proper under

the circumstances. RESPECTFULLY SUBMITTED this 24th day of May, 2006. TIFFANY & BOSCO, P.A.

By

s/Dow Glenn Ostlund Dow Glenn Ostlund, Esq. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Attorneys for Tegan Defendants

X I hereby certify that on the 24th day of May, 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:
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Kathleen L Beiermeister [email protected]; [email protected],[email protected] Mark A Bloomquist [email protected] [email protected],[email protected] Guy William Bluff [email protected] [email protected] Louis K Bonham [email protected] John D Everroad [email protected] [email protected]
Monty Lee Greek [email protected]; [email protected]

Ray Kendall Harris [email protected] [email protected] Christopher DC Hossack [email protected] [email protected] Edward Albert Kenney [email protected]
C. Mark Kittredge [email protected]; [email protected]; [email protected] Joseph E. Mais [email protected]; [email protected]; [email protected] Scott Sebastian Minder [email protected]; [email protected]; [email protected]

Joseph W Mott [email protected] [email protected] Jimmie W Pursell, Jr [email protected] [email protected],[email protected] Joseph A Schenk [email protected] [email protected],[email protected]

Case 2:03-cv-00169-SMM

Document 342 -8- Filed 05/24/2006

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Richard W Shapiro [email protected] [email protected] Deborah F Sirias [email protected] [email protected],[email protected] William C Steffin [email protected] [email protected],[email protected] Barry Harris Uhrman [email protected] [email protected],[email protected] Kurt M Zitzer [email protected] [email protected],[email protected] Patrick Zummo [email protected]; [email protected] I hereby certify that on the 24th day of May, 2006, I served the X attached document by United States ail on the following, who are not registered participants of the CM/ECF System: Wayne Michael Flood Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington, Ste 1100 Phoenix, AZ 85004-2385 Paul L Mitchell Mayer Brown Rowe & Maw LLP 700 Louisiana St, Ste 3600 Houston, TX 77002-2730 John Henri Toohey Bremer & Whyte 20320 SW Birch St 2nd Floor Newport Beach, CA 92660 By s/Dow Glenn Ostlund Donna Hamel

9269.005/306482.doc

Case 2:03-cv-00169-SMM

Document 342 -9- Filed 05/24/2006

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