Free Response in Opposition 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 284

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

GREG HANCOCK'S RESPONSE TO MERITAGE'S MOTION FOR ORDER TO SHOW CAUSE

Case 2:04-cv-00384-ROS

Filed 03/06/2006

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1. Greg Hancock and His Counsel Can Do Nothing More to Facilitate Discovery. Other than arrange a "Watergate" visit to the file room of Titus, Brueckner & Berry, counsel has no idea what to do to satisfy Meritage or the Court about the further production of the Titus records. The undersigned filed Greg Hancock's Motion to defer the effective date of the Court's recent discovery order because he was virtually certain that a further dispute about the Titus records would occur. However, it is time to recognize that the underlying cause of the problem is not Titus' desire to protect its clients' records, nor Greg Hanock's litigation posture, but the ceaseless quest of Meritage and its attorneys to "discover" entirely irrelevant documents and to harass any entity or person who has dealt with Greg Hancock. To aid this quest, Meritage and its counsel distort events and conversations, cite inapplicable cases, and endlessly bother the Court with unneeded motions.1 Attached hereto as Exhibit 1 is a letter counsel sent to Mr. Goldfine which confirms a conversation held at a deposition. In that conversation the undersigned stated to Goldfine, "I don't know what you want that you haven't already got, so I can't subpoena it," and Goldfine said that he would take the "baby step" of issuing a subpoena for it. Instead of doing that, Goldfine reneged on his statement and his associate now calls the letter about it "mistaken." (Mem. 3, l. 5) Moreover, the absurd statement is made that Hancock "controls" records in Titus' possession "irrespective of who, what, or where Titus is." (Mem. 3, l.13) Titus' clients other than Hancock would be astonished to know that. Of course, the case cited for the proposition does not support it - Poole v. Textron, Inc., 192 F.R.D. 494, 501 (D.Md. 2000) involved the files of only the litigating client, not those of other clients. Titus long ago turned over all of Hancock's individual files, and even all of the public records in which he

The root cause of these machinations is that Meritage has never had a viable case, nor can it "discover" any facts or documents which support its spurious claims.

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was involved with others. What Titus has not turned over are the records of clients other than Hancock, and Hancock has absolutely no power or dominion over those files. Any "gamesmanship" or "Three Card Monty" going on in this case is being played by Meritage. See the March 2, 2006, letter from Titus' counsel, Mr. Zitzer, attached hereto as Exhibit 2. Aside from the events described in that letter, the Court should be aware that Meritage recently has taken depositions of Rick Hancock employees, former Greg Hancock employees, former Meritage employees, its own employees,2 and its own equity partner. As will be irrefutably demonstrated in later filed summary judgment supplemental statements of fact, every deposed witness has refuted Meritage's claims of wrongdoing by Greg or Rick Hancock and any damages whatever to Meritage, and most have substantiated Greg Hanock's claims.3 Of particular note is the testimony of David Cornwall, Meritage's equity partner in the Westwind, Riata West and King Ranch projects. Meritage subpoenaed their own partner and deposed him. Cornwall produced all of his records relating to those projects, and Hancock produced all of them from either his files or Titus' files that he could. Cornwall testified that Greg Hancock withdrew from participation in Olympic Properties (the predecessor of Westwind and Riata West) at the cost of millions of dollars rather than violate his non-compete employment agreement with Meritage, and that Meritage got into the projects at their original cost rather than the inflated cost that Meritage now claims. The Olympic records are the very records that Meritage has been complaining about, and they entirely belie Meritage's claims. In summary, Greg Hancock and his counsel have attempted to facilitate further

In the case of Jerry Lilly, counsel for Meritage subpoenaed him without even knowing he was a Meritage employee, and attempted to cancel the deposition when they found out his testimony would be adverse to it. Further, several demonstrated that Meritage callously fired and intentionally defrauded Rick Hancock, the reason for his recent filing of a Motion to assert counter- and third-party claims.
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records production with counsel for both Meritage and Titus. They cannot steal the records. Even if they could, the Court should know that they would do nothing to further Meritage's claims, because its claims are spurious. Meritage's further quest for the Titus records, really nothing other than pure harassment in the guise of the quest for a "smoking gun," is a matter for other counsel and the Court, who will soon hear from counsel for Titus. RESPECTFULLY SUBMITTED this 6th day March, 2006.

/s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg & Linda Hancock VERIFICATION

Robert M. Frisbee hereby attests, subject to the Rules of Civil Procedure and under penalty of possible sanctions, that the statements made and the information contained in the 12 foregoing Response to Motion For Order to Show Cause are true and correct to the best of my knowledge.
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/s/ Robert M. Frisbee Robert M. Frisbee

The foregoing was electronically filed this 6th day of February, 2006, and copy 17 thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee