Free Motion to Amend/Correct - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. IVAN K. MATHEW (SBN: 011610) 1850 N. Central Avenue, Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 / Fax: (602) 254-2204 e-mail: [email protected] Attorneys for Defendants RICKY LEE HANCOCK, BRENDA HANCOCK, RICK HANCOCK HOMES, L.L.C. and RLH DEVELOPMENT, L.L.C. 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, and currently d/b/a Meritage Homes Construction, Inc., an Arizona Corporation, and Meritage Homes of Arizona, Inc., an Arizona Corporation, Plaintiffs, v. (Assigned to the Honorable Roslyn O. Silver) Ricky Lee Hancock and Brenda Hancock, husband and wife, Gregory S. Hancock and Linda Hancock, husband and wife, Rick Hancock Homes, L.L.C., an Arizona limited liability company, RLH Development, L.L.C., an Arizona limited liability company; and J2H2, L.L.C., an Arizona limited liability company, Defendants. CASE NO. CV-04-0384-PHX-ROS RICK AND BRENDA HANCOCK'S MOTION TO AMEND AND FILE COUNTERCLAIM, ADD CLAIMS AGAINST EXISTING THIRD PARTY DEFENDANTS AND ADD THIRD PARTIES

Defendant, Rick Hancock and Rick Hancock Homes, represented by Ivan K. Mathew, respectfully moves this Court to file a Counterclaim in this matter, and add additional parties to this lawsuit. A proposed copy of the Counterclaim and Third-Party claims is attached as Exhibit "A." I. FACTUAL BASIS FOR THE CLAIMS. A. The Secret Cancellation of the Madrid Home.
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On or about November 21, 2003, Rick Hancock sought to purchase a home. When purchasing a home, he was entitled to a discount of approximately $76,000. When John Landon and James Arneson, officers of Meritage, found out that Rick Hancock, the brother of Greg Hancock, would be purchasing a home and receiving an employee discount, rather than give him the discount, they terminated him. However, on December 8, 2003, the contract was accepted by Hancock-MTH Communities, Inc., a subsidiary of Meritage. The contract was executed by Scott Keeffe, the authorized broker. Meritage had a duty to inform Rick Hancock of the acceptance of the Madrid home contract. On or about December 8, 2003, Meritage should have informed Brenda and Rick Hancock of the acceptance of the contract, instead Meritage hid this fact. On December 8, 2003, Jon Titus, on behalf of Rick Hancock, notified Steve Hilton and James Arneson by a hand-delivered letter that the contract needed to be honored. Meritage proceeded in claiming that the contract was not in effect. In reality, it was accepted on December 8, 2003. After Messrs. Zetah and Arneson received the letter, Roger Zetah, the Chief Financial Officer, who has never involved himself in the cancellation of contracts, sought to have the contract pulled from Scott Keeffe before it was accepted. Mr. Zetah found it was accepted and became upset. Mr. Zetah then asked another employee to cancel the contract, and the employee replied that she was uncomfortable doing that. Mr. Zetah then sought to cancel the contract himself. In doing so, he filled out a cancellation contract with false information to make it look like the contract had been cancelled. The date of cancellation was December 8, 2003 on the notice. However, the place where the actual execution date must be noted by the signer of the document was intentionally left blank by Mr. Zetah. This was left blank because the Madrid home contract was not canceled on December 8, 2003. The Notice of Cancellation indicates it was canceled at the request of Rick and Brenda Hancock. This is a false statement. During December 2003, negotiations for the severance package of Rick Hancock began. Brenda Hancock was eight months pregnant at this time and Rick Hancock had no income. When the negotiations began regarding a severance package for Rick Hancock, the position of Meritage in their settlement
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was that there was no contract. As part of the severance package, Meritage sought and obtained a release from Rick Hancock. During the time the release was being sought, neither Steve Hilton, John Landon, James Arneson, Roger Zetah, Scott Keeffe ever informed Rick Hancock that the contract had actually been accepted. The settlement and release was induced by fraudulent pretenses and material omissions. On January 26, 2006, the deposition of Jerry Lilly, the real estate agent for Rick Hancock and Brenda Hancock, took place. At that point, he stated that he was stunned to find out that the contract he wrote had been accepted by Meritage. He had been led to believe the contract had never been accepted. Jerry Lilly is a Meritage employee. Employees of Meritage had a fiduciary duty to Rick Hancock. This Motion is timely. II. LEGAL AUTHORITY. F.R.C.P. Rule 15(a) provides for amendments of Complaints to be freely granted to effectuate the ends of justice. "Federal policy strongly favors determination of cases on their merits. Foman v. Davis (1962) 371 US 178, 182, 83 S.Ct. 227, 230; FilmTec Corp.

Hydranautics (Fed. Cir. 1995) 67 F.3d 931, 935-936; Martinez v. Newport Beach City (9th Cir. 1997) 125 F.3d 777, 785. This policy is to be applied with "extreme liberality." Eminence Capital, LLC v. Aspeon, Inc. (9th Cir. 2003)." III. CONCLUSION. As such, it is respectfully requested that the Counterclaim and claims against third parties be allowed to be filed. RESPECTFULLY SUBMITTED this 2nd day of March, 2006. MATHEW & MATHEW, P.C

By:

s/Ivan K. Mathew Ivan K. Mathew, Attorneys for Defendants Rick Hancock, et al.

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CERTIFICATE OF SERVICE Meritage v. Hancock, et al. Case No. CV 04 00384 ROS

I hereby certify that on March 2, 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:

Dan W. Goldfine Richard G. Erickson Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 e-mail: [email protected] Attorneys for Plaintiff Meritage Corporation Timothy J. Burke Fennemore & Craig, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012 e-mail: [email protected] Attorneys for Third Party Defendant, Snell & Wilmer, LLP

Robert M. Frisbee Frisbee & Bostock 5611 N. 16th Street Phoenix, AZ 85016 e-mail: [email protected] Attorneys for Defendant Gregory Hancock

I hereby certify that on March 2, 2006, I served the attached document(s) by mail on the following, who are not registered participants of the CM/ECF System: N/A.

s/Karen Gawel