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John R. Lund (4368)
Kara L. Pettit (8659)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Post Office Box 45000
Salt Lake City, UT 84145-5000
Telephone: (801) 521-9000
Facsimile: (801) 363-0400
Howard M. Shapiro (pro hac vice)
Jonathan E. Paikin (pro hac vice)
Christopher E. Babbitt (pro hac vice)
WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 663-6000
Facsimile: (202) 663-6363
Attorneys for Defendants United Park City Mines Company,
Talisker Land Holdings, LLC, Talisker Land Resolution LLC,
and Talisker Canyons LeaseCo LLC
IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR
SUMMIT COUNTY STATE OF UTAH
GREATER PARK CITY COMPANY, a Utah
corporation, and GREATER PROPERTIES,
INC., a Delaware corporation,
Plaintiffs/Counterclaim Defendants,
vs.
UNITED PARK CITY MINES COMPANY, a
Delaware corporation, and TALISKER LAND
HOLDINGS, LLC, a Delaware limited liability
company, et al.,
Defendants/Counterclaimants.
DEFENDANTS UNITED PARK CITY
MINES COMPANY AND TALISKER
LAND HOLDINGS, LLCS REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT ON THEIR UNLAWFUL
DETAINER COUNTERCLAIM AND AN
ORDER OF RESTITUTION
Case No. 120500157
Judge Ryan Harris
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SUMMARY
Nearly three years after their Leases expired, GPCC/GPI remain
in unlawful possession
of Taliskers land, reaping millions of dollars of profit each
year and continuing to deprive
Talisker of the beneficial use of its own property. Plaintiffs
Opposition makes clear that they
will go to great lengths to keep prolonging this litigation as
long as possible solely to delay the
consequences of their own poor business decisionsfirst their
mistake in failing to renew their
below-market Leases, and then their compounding that mistake by
choosing to abandon
negotiations with Talisker and instead tie the land up in
litigation. The unlawful detainer statute
should foreclose any further delay by Plaintiffs. It provides
for immediate enforcement of an
order of restitution upon entry of a judgment of unlawful
detainer. See Utah Code 78B-6-811.
As the Supreme Court has explained, the unlawful detainer
statute exists to provide a speedy
resolution on the issue of possession. Osguthorpe v. Wolf
Mountain Resorts, LC, 2010 UT 29,
23, 232 P.3d 999 (citations omitted). GPCC/GPIs efforts to
further delay their eviction, based
only on ancillary issues that do not support any right to remain
in possession, should be rejected.
First, as discussed in Section I, there are no disputed issues
of material fact with respect
to any of the elements of unlawful detainer, all of which will
be easily met if the Court declines
to excuse Plaintiffs failure to renew their Leases.
Second, as discussed in Section II, the motion is timely and the
question of unlawful
detainer is ripe for adjudication. Even if Plaintiffs were
ultimately to prevail on their claims
asserting a violation of the prohibition on sale (POS) and right
of first refusal (ROFR), those
claims have no bearing on the question of Taliskers right of
possession. Plaintiffs have
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conceded that their POS and ROFR rights were extinguished in
August of 2013 by Taliskers
notice to quit and are no longer in effect. Transcript of April
8, 2014 Hearing, p.106, lines 18 to
25. And they have conceded that nothing prevents Talisker and
Vail from re-entering the same
transaction today, at least with regard to the improved portions
of the land which is where the
resort actually operates. Id. p. 107, lines 18 to p. 108 line 2.
As to the unimproved portions of
the land, they claim only a chance to negotiate for those lands
with the leverage of having the
Vail-Talisker transaction unwound and no right to continuing
possession flows from that. Id. p.
109 lines 1423. Whatever the results of the pending motions
concerning the prohibition on sale
and right of first refusal, they can be dealt with later as
needed and should not further frustrate
Taliskers current right to be restored possession of all of its
lands.
Third, as discussed in Section III, GPCC/GPIs arguments that
they should retain
possession until the Court adjudicates their claim that they can
remove the ski lifts before they
vacate are wrong and premature. Utah Code 78B-6-812(1) and
(2)(b) provide for a hearing,
held within 10 days after issuance of the restitution order, at
which the Court can decide whether
GPCC/GPI are entitled to remove the lifts. In other words,
adjudication of this type of ancillary
dispute comes after the order of restitution is issued; it is
not a basis for delaying issuance of the
order itself.
Fourth, as discussed in Section IV, GPCC/GPIs argument that the
Court cannot rule on
this unlawful detainer motion until after an appellate court
reviews all of the Courts rulings in
this case puts the cart before the horse. Questions about
whether GPCC/GPI will be entitled to
seek interlocutory appeal, whether the Court should stay
eviction pending appeal, and the
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amount of bond required were it to do so, are not before the
Court on this motion. The only
question before the Court is whether it should enter partial
summary judgment in favor of
Talisker on its unlawful detainer counterclaim and issue an
order of restitution requiring
GPCC/GPI to vacate the premises. If GPCC/GPI choose to appeal
the Courts decision, or seek
a stay of the order, there is a clearly prescribed process for
seeking such relief.
RESPONSE TO GPCC/GPIS STATEMENT OF ADDITIONAL FACTS
None of GPCC/GPIs additional facts relates in any way to the
elements of unlawful
detainer or whether Talisker has a right to be restored
possession of the property. They are
immaterial to Taliskers motion. Taliskers response to GPCC/GPIs
additional facts is attached
as Exhibit A.
ARGUMENT
I. THERE ARE NO DISPUTED FACTS RELEVANT TO UNLAWFUL DETAINER AND
AN ORDER OF RESTITUTION.
The statutory elements of unlawful detainer are straightforward:
(1) the tenant remains in
possession of real property; (2) after expiration of the term of
the tenants lease or tenancy at
will; and (3) after having been duly served with a notice to
quit. Utah Code 78B-6-802. Each
of these elements is present here.
GPCC/GPI remain in possession of Taliskers real property.
Taliskers Statement of Undisputed Facts (SOF) 13; Pltfs. Response
to Defs. SOF 13.
If the Court denies Plaintiffs Motion for Reconsideration and
grants Taliskers Motion for Summary Judgment on Plaintiffs
Equitable and Nondisclosure Claims, the Court will have determined
that the Leases expired.
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GPCC/GPI were duly served with a notice to quit on August 28,
2013. SOF 8-9; Pltfs. Response to Defs. SOF 8-9.
These are the only material facts relevant to this motion, and
they are undisputed. Talisker is
entitled to judgment as a matter of law in its unlawful detainer
claim and, by statute, the
automatic result of such a judgment is an order for the
restitution of the premises as provided in
Section 78B-6-812. See Utah Code 78B-6-811(1)(b).
II. TALISKERS MOTION IS TIMELY.
GPCC/GPI argue that Taliskers motion was both too late and too
early. Neither is
correct.
A. Taliskers Motion Is Not Too Late.
GPCC/GPIs assertion that the deadline to file all dispositive
motions was February 7,
2014, Pltfs. Opp. Mem. at 8, and that, therefore, Taliskers
Motion is late, is not correct. The
Courts July 30, 2013 Scheduling Order stated: Dispositive
motions on the remaining portions
of Plaintiffs First Cause of Action for Declaratory Relief that
do not necessarily involve expert
discovery shall be filed by February 7, 2014. Scheduling Order
from July 30, 2013 Conference
at 2 (emphasis altered from original).1 The parties later
elected to proceed with dispositive
motions on GPCC/GPIs Seventh and Eighth Causes of Action
alleging violations of the
prohibition on sale/right of first refusal provisions on the
same schedule. This motion does not
relate to Plaintiffs First, Seventh or Eighth Causes of Action,
but rather to Taliskers unlawful
1 By comparison, the order also stated that: Fact discovery on
all claims, including the claims
added via the Second Amended Complaint, shall be completed by
January 17, 2014. Scheduling Order from July 30, 2013 Conference at
2 (emphasis altered from original).
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detainer counterclaim, which was not discussed at the July
30th
conference and was not even
filed until October 28, 2013. Moreover, the motion was promptly
filed on March 14, 2014,
following the Courts denial of GPCC/GPIs motion to dismiss the
unlawful detainer claim on
February 20, 2014, and GPCC/GPIs filing of their answer on
Thursday, March 6, 2014
admitting that they continue to occupy and possess the Leased
Premises. Reply to Paragraphs
66-81 of the Counterclaims of UPCM and TLH, dated March 6, 2014,
at 69. The motion is
timely.
B. Taliskers Motion Is Not Premature.
GPCC/GPI assert that Taliskers motion is premature because the
Court has not yet
adjudicated their motion for reconsideration, nor has the Court
ruled on Taliskers motion for
partial summary judgment on GPCC/GPIs claims of waiver and
estoppel. Talisker agrees that
the outcome of those motions will determine whether the second
element of unlawful detainer is
satisfied i.e., whether GPCC/GPIs Leases expired. The Court
heard those motions on April 3,
and if the Court rules in Taliskers favor, then all elements of
unlawful detainer will have been
met and this motion will be ready for adjudication. Accordingly,
all of the parties agreed that a
Hearing on this motion should be set for the earliest available
date after the Court decides the
motions that were heard on April 3.
GPCC/GPI also assert that Taliskers motion is premature because
the Court has not yet
ruled on their claims for violation of the POS and ROFR. The
Court heard argument on these
claims on April 8, and those issues will be also decided before
the Court considers this motion.
If Talisker prevails, then GPCC/GPIs argument here would be
mooted. But, even if the Court
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does not grant summary judgment to Talisker on the POS/ROFR
claims, the those claims have
no bearing on Taliskers current possessory rights.
1. Prohibition on Sale
GPCC/GPI admit that a violation of the POS provision entitles
them, at most, to an
order unwinding the transfer of ownership and control of all
improved portions of the Leased
Premises. Pltfs. Opp. Mem. 1; see also Transcript of April 8,
2014 Hearing, pp.106-109
attached as Exhibit B. Even if Plaintiffs obtained such an
order, it would not give them any right
to be on the property. As GPCC/GPI have stated, it would only,
at best, give them another
chance to negotiate for the unimproved lands with the leverage
of having the Vail-Talisker
transaction unwound. Id. at p. 109 lines 1423. But neither
Talisker, nor any of its parent
companys members, has any interest in selling or re-leasing any
portion of the premises to
GPCC/GPIboth have made clear that they believe the Vail
transaction to be in Taliskers best
interests. See Bistricer Decl. at 5-6 and Iannazzo Decl. at 6-8,
attached as Exhibits C and
D.
Talisker and its parent company members all unequivocally desire
to promptly evict
Plaintiffs from the premises and allow Vail to begin operations
on the property. See Bistricer
Decl. at 8 and Iannazzo Decl. at 7. Talisker and its parent
company members view the
agreement they were able to achieve with VR CPC Holdings as more
beneficial than any
agreement that could be achieved with GPCC/GPI, which had
already rejected Taliskers
proposed new lease terms and abandoned any further negotiations
long before discussions with
Vail began. See Bistricer Decl. at 5-6 and Iannazzo Decl. at 6,
8. Plaintiffs wish, despite
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clear evidence to the contrary, that Talisker might choose them
over Vail as its preferred tenant
is no basis for depriving Talisker of its right to immediate
possession under the unlawful detainer
statute.
GPCC/GPI also argue that the Court must determine which of the
Defendants, if any,
now has the right to possession in light of Defendants alleged
violation of paragraph 14 of the
Resort Area Lease and paragraph 13 of the Crescent Ridge Lease.
Pltfs. Opp. Mem. 12. It is,
however, undisputed that TLH is the fee owner of the land. SOF
2. Under the unlawful
detainer statute, Utah Code. 78B-6-801(5), it is simply
irrelevant whether there was a change in
management or control of TLH or its corporate affiliates. As the
undisputed owner of the
premises, TLH is entitled to be restored to possession of the
premises, regardless of who may
have an interest in TLH, or what is done with the property after
it is restored to TLHs
possession. There are no circumstances by which an adjudication
of the POS claims could
somehow give GPCC/GPI any right to remain in possession of the
property.
2. Right of First Refusal
With respect to the ROFR claim, GPCC/GPI argue that their right
to obtain unimproved
portions of the Leased Premises precludes a determination that
they are in unlawful possession
of the land. They are wrong for two independent reasons. First,
the argument at most affects
only the two unimproved portions of the land; even if Plaintiffs
were correct, Talisker would still
be entitled to an order of restitution for the improved portions
of the property. Second, the right
of first refusal is legally distinct from a right of possession.
See Federal Land Bank of Saint
Paul v. Obermoller, 429 N.W.2d 251, 258 (Minn. Ct. App. 1988)
(Inferring a right to retain
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possession until the previous owner is afforded an opportunity
to exercise its right of first refusal
conflicts with the unlawful detainer statute which expressly
allows a party to recover
possession.). Assuming that GPCC/GPIs ROFR claims had any merit,
and setting aside the
fact that Vails ultimate interests in the unimproved portions of
the land are a lease and an
easement,2 not fee ownership, GPCC/GPIs preemptive rights under
the ROFR would come to
pass only if they satisfied all of the requirements to exercise
the ROFR. It is only at that point
that GPCC/GPI would have a right to purchase the unimproved
parcels. Plaintiffs right to
possession does not exist today, and the preservation of such
right for a future adjudication does
not preclude immediate restoration of the land to its current
owner, Talisker.
III. GPCC/GPIS CONTRIVED DISPUTE OVER THE SKI LIFTS HAS NO
BEARING ON THE ISSUE BEFORE THE COURT.
GPCC/GPI threaten to remove the components of some, but not all,
of the ski lifts on the
Resort before they vacate the premises. 3
Under the express terms of the Leases, they are not
allowed to do so nor may they do so under the applicable case
law.4 Most importantly for the
2 In the event of a favorable ruling, Vail would only obtain an
easement over the White Pine
Land, which is a portion of the unimproved land. See Limited
Liability Company Agreement of
Talisker Land Resolution LLC at 5 and Exh. C (Demising
Amendment) 4 (attached as Ex. 18 to 1/31/14 Babbitt Decl. in
Support of Defendants Motion for Summary Judgment on Plaintiffs
Claim for Violation of the Prohibition on Sale).
3 GPCC/GPI specifically reference the lift towers bolted to
concrete footings, the chairs,
the chair grips, the bullwheels, the engines, and the
counterweights as the ski lift components they will remove. (Pltfs.
Opp. Mem. at 11.) 4 According to the Leases, upon termination all
buildings, structures, facilities and
improvements situated upon and which are affixed to the soil
become property of Talisker. Resort Area Lease at 19; Crescent
Ridge Lease at 20. Ski lifts are affixed to the soil. See,
e.g., Sherburne Corp. v. Town of Sherburne, 207 A.2d 125 (Vt.
1965) (ski lifts were fixtures
because the towers were specifically designed according to the
topography of the line of the
particular lift and the lease contemplated that the lifts could
not be removed); King Ridge, Inc. v.
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purposes of the instant motion, the issue of the ski lifts is
ancillary to the question of restitution
and, under the statute such matters are to be resolved at a
hearing regarding the manner of
enforcement, which should be held within ten days after the
Court issues an order of restitution.
See Utah Code Ann. 78B-6-812(4); Butters v. Jackson, 917 P.2d
87, 88 (Utah Ct. App. 1996)
(noting procedural history that challenge to portion of trial
courts restitution order that directed
tenants to leave their personal property on the premises was
decided at enforcement hearing after
judgment was rendered). GPCC/GPIs argument has no bearing on the
question of possession of
the property and does not prevent issuance of an order or
restitution.
IV. THE UNLAWFUL DETAINER STATUTE REQUIRES ISSUANCE OF AN ORDER
OF RESTITUTION REGARDLESS OF WHETHER THAT
ORDER IS CERTIFIABLE UNDER RULE 54(b).
In a final effort to delay their eviction, GPCC/GPI argue that
even if the Court grants
Taliskers motion for summary judgment, the Court should postpone
issuing an order of
restitution until all claims in the case have been decided and
judgment is final within the
meaning of Rule 54(b). This argument is foreclosed by the
express language of the unlawful
Town of Sutton, 340 A.2d 106 (N.H. 1975) (finding the ski lifts,
including the towers, terminals, chairs, and cables were part of
the real property because they were intimately intertwined with the
primary use of the land and that the land could not be used as a
ski resort without the
lifts); Daugherity v. Von Roll Habegger of America Inc., 1990 WL
300841 (P. Com. Pl.)
(explaining that a ski lift is obviously an improvement to real
estate); Little v. Nat. Serv. Indus.,
Inc., 340 S.E.2d 510, 514 (N.C. Ct. App. 1986) (a chair lift
with tower legs bolted to poured
concrete foundations was a fixture); McKeehan v. Butler
Township, 30 Pa. D. & C.3d 105, 1983
WL 167 (Pa. Com. Pl. 1983) (finding that the ski lift is part of
the operating ski slope, and that it
would be absurd to rule that the lift, foundations for the lift,
the cable, and the engine house are
not part of the real property); compare with Sunday River Skiway
Corp. v. State Tax Assessor,
573 A.2d 24, 25 (Me. 1990) (holding that ski lift equipment was
considered personal property at
the time it was purchased because it was not yet attached to
realty). The Washington case cited
by Plaintiffs declined to address the question of whether ski
lifts were fixtures, instead holding
that ski lifts were improvements to real property. Pinneo v.
Stevens Pass, Inc., 545 P.2d 1207, 1209 (Wash. Ct. App. 1976).
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detainer statute which could not be more explicit regarding the
immediacy of eviction. In a
section titled Judgment for restitution, damages, and
rentImmediate enforcementtreble
damages, the statute provides that once a defendant is found to
be in unlawful detainer
execution upon the judgment shall be issued immediately after
the entry of the judgment. Utah
Code 78B-6-811(4)(a). The judgment in favor of a plaintiff shall
include an order for the
restitution of the premises as provided in Section 78B-6-812.
Utah Code 78B-6-811(1)(b)
(emphasis added).
GPCC/GPI also suggest that the Court should withhold issuing an
order because they
intend to appeal. Such arguments are premature. GPCC/GPIs
appellate rights, whatever they
may be, will remain available to them once the Court has ruled
on the various motions and
claims, and are not a basis on which the Court can forego making
a decision on this summary
judgment motion and the required order for restitution. If
GPCC/GPI believe they are entitled to
a stay pending an appeal they may seek to bring, then they will
need to file a motion pursuant to
Utah Rule of Civil Procedure 62, after the Court issues any
rulings upon which they seek a stay.
CONCLUSION
For the foregoing reasons, Talisker is entitled to summary
judgment on the issue of
possession on its unlawful detainer claim and an order of
restitution restoring the Leased
Premises to its possession. The process to be followed is
clearly prescribed under the unlawful
detainer statute, as well as the rules of civil and appellate
procedure.
If this Court dismisses GPCC/GPIs equitable claims and denies
their motion for
reconsideration, then:
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(1) The Court should grant Taliskers motion for summary judgment
on unlawful
detainer and issue an order of restitution. The Leases provide
that GPCC/GPI must remove all
property from the Leased Premises within sixty days of
termination. Resort Area Lease 19;
Crescent Ridge Lease 20. Talisker submits that rather than the
three days to vacate prescribed
by statute, the sixty days reflects the parties bargained for
agreement as to what time limit
would be reasonable. A proposed order of restitution consistent
with Taliskers position is
attached as Exhibit E.
(2) Upon request, GPCC/GPI will be entitled to a hearing on the
manner of
enforcement of the restitution order. Utah Code Ann.
78B-6-812(4). The hearing is to be held
within ten days of the request, or as soon thereafter as
practicable. Id. Enforcement may be
stayed during this period. Utah Code Ann. 78B-6-812(2)(b).
Talisker does not believe
additional briefing is necessary but the court may see fit to
request limited briefing on issues not
fully addressed in these motions.5
(3) GPCC/GPI are, of course, free to seek any appeals or stays,
to which they are
entitled under the Rules.
5 Alternatively, if the Court finds that further factual
development is required on the issue
of the chair lifts (or other improvements), Talisker should be
restored to possession in the interim
and these issues can be developed and decided later.
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Dated this 21st day of April, 2014.
SNOW, CHRISTENSEN & MARTINEAU
By: __/s/ John R. Lund________________
John R. Lund
Kara L. Pettit
WILMER CUTLER PICKERING
HALE and DORR LLP
Howard M. Shapiro (pro hac vice)
Jonathan E. Paikin (pro hac vice)
Christopher E. Babbitt (pro hac vice)
Attorneys for Defendants United Park City Mines
Company an, Talisker Land Holdings, LLC
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 21st day of April, 2014, I caused a
true and correct
copy of the foregoing to be served upon the following in the
manner indicated:
Via Courts Electronic Filing System:
Alan L. Sullivan (3152)
Amber Mettler (11460)
Snell & Wilmer L.L.P.
15 West South Temple, Suite 1200
Salt Lake City, Utah 84101-1004
Attorneys for Plaintiffs
Jonathan A. Dibble (0881)
RAY QUINNEY & NEBEKER P.C.
36 South State Street, Suite 1400
P.O. Box 45385
Salt Lake City, Utah 84145-0385
Attorneys for Defendant VR CPC Holdings, Inc
Michael D. Zimmerman (3604)
Troy L. Booher (9419)
Zimmerman Jones Booher LLC
136 South Main Street, Suite 721
Salt Lake City, Utah 84101
Attorneys for Plaintiffs
Mark James (5295)
Hatch, James & Dodge, P.C.
10 West Broadway, Suite 400
Salt Lake City, Utah 84101
Telephone: (801) 363-6363
Attorneys for Defendants Flera, LLC and Talisker
Canyons Finance Co LLC
Via United States Mail:
Bruce Meyer (pro hac vice)
James Quinn (pro hac vice)
Weil, Gotshal & Manges, LLP
767 Fifth Ave
New York, NY 10153
Attorneys for Plaintiffs
Robert C. Blume (pro hac vice)
Ryan T. Bergsieker ( pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1801 California Street Denver, CO
80202-2642
Attorneys for Defendant VR CPC Holdings, Inc.
Michael Gill
Daniel Storino
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
Attorneys for Defendants Flera, LLC and Talisker
Canyons Finance Co LLC
_____/s/ Julie Emery______________
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EXHIBIT A
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EXHIBIT A
Talisker responds to the factual statements proffered by
GPCC/GPI in the Statement of
Additional Material Facts included in their Opposition to
Defendants Motion for Partial
Summary Judgment on their Unlawful Detainer Counterclaim as
follows:
1. GPCC has built and maintained on the Leased Premises ski
lifts, ski runs, day lodges, restaurants and other winter and
summer recreational and resort facilities associated with
the operation of a recreational resort. (Mem. in Support of
Plfs. Motion for Reconsideration, filed February 7, 2014, Statement
of Facts at 4.) In doing so, GPCC has invested over $98
million since 1998 to develop the Resort. (Id.)
Defendants Response: Talisker does not dispute that GPCC has
made improvements to
the Leased Premises, including building and maintaining ski
lifts, ski runs, day lodges,
restaurants and other winter and summer recreational and resort
facilities. These improvements
are, however, immaterial to whether GPCC/GPI are in unlawful
detainer of Taliskers property.
Further, while Talisker does not dispute the general proposition
that GPCC spent money to
maintain and develop the Resort since 1998, GPCC has not
provided proper support for the
statement that GPCC has invested over $98 million since 1998 to
develop the Resort.
2. Although much of the Resorts ski terrain is covered by the
Leases, the Resorts base area, parking facilities, and Town Lift
base are owned by GPCC and/or Powdr Corp., and
the terrain immediately uphill from the base is owned by
non-party PPI and leased by GPCC. (Id.
at 5.) GPCC owns outright the water, snowmaking and sewer
infrastructure necessary for the
operation of the Resort. (Id.)
Defendants Response: Undisputed, except it is not accurate that
the water,
snowmaking and sewer infrastructure necessary for the operation
of the Resort is owned by
GPCC. First, any water, snowmaking, or sewer infrastructure that
is affixed to the soil of the
Leased Premises is covered by Paragraph 19 of the Resort Area
Lease and Paragraph 20 of the
Crescent Ridge Lease, which provide that such fixtures become
the property of Talisker upon
termination of the Leases. Second, at his deposition, Mr.
Bistricer was asked: Q: Could you run
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the Powder Corp Mountain Resort as a ski resort without the base
facilities owned by Powder?
A. Yes, you probably can. Q: How? A. Well, technically. But you
can access it through you
could access it from the Canyons side, you could access it from
the Deer Valley side. And you
dont necessary have to get out of the resort to get out onto the
base area. Just more terrain.
Zimmerman Decl., Ex. 7 (Bistricer Dep. at 136:5-14). Finally,
GPCC/GPIs assertions in this
paragraph are immaterial to whether GPCC/GPI are in unlawful
detainer of Taliskers property.
3. The Resort employs over 1,200 employees and generates
hundreds of millions of dollars for businesses and individuals
throughout the State by drawing over 1 million local and
out-of-state skiers and summer tourists to Utah every year. (Id.
at 6.)
Defendants Response: Talisker lacks a basis to confirm or deny
the truth of this
statement. The statement is, however, immaterial to whether
GPCC/GPI are in unlawful detainer
of Taliskers property.
4. With the exception of the Jupiter Lift, the Thaynes Lift, and
the Motherlode Lift all of the ski lifts on the Resort are
constructed so that the ski lift towers are bolted to concrete
footings but are not otherwise affixed to the land. (See
Declaration of Jenni Smith, dated April 1,
2014, filed contemporaneously herewith (Smith Decl.) at 3.)
Defendants Response: Talisker does not dispute that some of the
ski lift towers are
bolted to concrete footings. Under the plain terms of the
Leases, and as a matter of law, the ski
lifts are buildings, structures, facilities and improvements
situated upon and which are affixed
to the soil that became the property of Talisker after the
Leases expired. Any question
regarding the ownership of the ski lifts should be addressed, if
necessary, at the statutory hearing
regarding the manner of enforcement of the restitution order,
and has no bearing on whether
Talisker is entitled to the restitution order in the first
instance.
5. Should GPCC be required to vacate the Leased Premises, GPCC
intends to remove, among other things, the components of the ski
lifts on the Resort including but not
limited to the lift towers bolted to concrete footings, the
chairs, the cables, the chair grips, the
bullwheels, the engines, and the counterweights. (See id. at
4.)
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Defendants Response: This assertion is not a statement of fact,
and GPCCs intent is
contrary to the plain terms of the Leases. The ski lifts are
buildings, structures, facilities and
improvements situated upon and which are affixed to the soil
that became the property of
Talisker after the Leases expired. Any question regarding the
ownership of the ski lifts should
be addressed, if necessary, at the statutory hearing regarding
the manner of enforcement of the
restitution order, and has no bearing on whether Talisker is
entitled to the restitution order in the
first instance.
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EXHIBIT B
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THIRD JUDICIAL DISTRICT COURT, SILVER SUMMIT
IN AND FOR SUMMIT COUNTY, STATE OF UTAH
GREATER PARK CITY COMPANY, et al., : Case No. 120500157 :
Plaintiffs, : :
v :
:
UNITED PARK CITY MINES COMPANY, :et al., :
:
Defendants. : With Keyword Index
MOTION HEARING APRIL 8, 2014
BEFORE
JUDGE RYAN HARRIS
CAROLYN ERICKSON, CSRCERTIFIED COURT TRANSCRIBER
1775 East Ellen Way Sandy, Utah 84092
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106
THE COURT: So what is that order going to look1
like? Im just - 2
MR. QUINN: I think the order would simply - 3
THE COURT: - having a hard time getting my mind4
around it. 5
MR. QUINN: - be that the provisions of that deal6
that relate to the PCMR lands would be held to be in7
violation of the seventh and eighth and therefore would be8
required to be undone and not any more complicated than that.
9
Youre not going to order what they do next.10
THE COURT: All right. Lets move over to the Vail11
transaction. Unwinding that seems a little simpler to me
in12
my mind anyway because that hasnt fully ripened yet. Its13
contingent in a lot of ways on what happens here. So if I14
were to say, Hey, were going to unwind that deal and go
back15
to how everybody was positioned on May 23, 2013, all right
I16
think I understand that but help me understand what
happens17
next, right? You dont contend - 18
MR. QUINN: Ill give you my - 19
THE COURT: - today standing here today, you dont20
contend that as of today the prohibition on sale and the21
right of first refusal are still in effect, do you?22
MR. QUINN: No, because I do agree that once they23
served the notice to quit that that effectively
extinguished24
them. But were not talking about that date. Were talking25
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107
about going back prior to that date.1
THE COURT: Correct. So if I unwound it and I2
entered an order that said that entire deal that went down
in3
May of 2013 is just void, its done, none of it is good any4
more, whats - 5
MR. QUINN: Yeah, I dont think you necessarily6
would have to do that. You would simply - you could do that7
but I also think that you could sign an order that said
that8
to the extent that the provisions of that deal - remember a9
great deal of that deal had to do with the Canyons, that
its10
only this other piece, you know, which was obviously11
important to Katz - 12
THE COURT: Fair enough. But lets assume just for13
simplicity sake I said the whole thing is just done
because14
you know it affects the whole - I dont know what argument15
you would make for getting me to do it, just for
simplicity16
hypothetical say, lets say I unwound the entire
transaction17
and said lets just void, its done, ripping it up. Given18
you concession that prohibition on sale and the right of19
first refusal are no longer in effect, whats to prevent20
those same folks from entering into that same deal the day21
after my order?22
MR. QUINN: Your Honor, as I sit here I cant say23
that I can say theres anything to prevent that but at that24
point, given what we now know and what - 25
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108
THE COURT: At least with regard to the prohibition1
on sale, I guess I should say.2
MR. QUINN: What we now know is in fact the3
property is greatly encumbered, that its not clear that
Vail4
ever understood how encumbered it was. At that point it may5
be that we would be able to negotiate a new deal, I dont6
know. I dont know. We do know that the property right now7
cannot be operated by Vail as a ski resort because it
doesnt8
have access to the key things it needs. So the parties9
position has changed and maybe the leverage changes10
significantly.11
THE COURT: You think youd have a shot at12
negotiating something maybe you couldnt have before?13
MR. QUINN: Yes, absolutely.14
THE COURT: What about that argument that Mr.15
Shapiro and I engaged in a very brief colloquy about with16
regard to the ROFR? Assuming that youre right about17
everything else leading up to the ROFR, what do I make of
the18
Hawaii Supreme Courts case in Kakowski having to do with19
ROFR being triggered by an offer to purchase a larger
parcel20
that has two smaller portions in it that are subject to
the21
ROFR? Do you follow my question?22
MR. QUINN: I do follow your question and - 23
THE COURT: It was inartful.24
MR. QUINN: It seems to me that that finding by the25
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109
Supreme Court would support our notion that in fact the
ROFR1
has, is triggered, particularly in the circumstance here2
where you have a ban on sale. The facts there are a little3
different because as I understood the facts you have this
guy4
who owns, you know, a piece of land in the middle of a
bunch5
of other land that I think they wanted to expand the golf6
course. 7
By the way, that (inaudible) golf course is a very8
nice golf course. 9
I think that is not quite the circumstances we have10
here. So Im not sure that that portion of the opinion or11
the Supreme Courts decision is really all that relevant to12
the circumstances in this case. 13
THE COURT: I know this hasnt been really briefed14
but your position would be that even assuming theyre right15
that the ROFR only applies to those two, are they red, pink -
16
MR. QUINN: Reddish pink.17
THE COURT: Only applies to those two parcels.18
MR. QUINN: Right.19
THE COURT: You think you would still have a right20
to purchase those two parcels if in fact everything else
fell21
into place for you here?22
MR. QUINN: Yes, Your Honor, that is our position. 23
THE COURT: On the same terms as - assuming its a24
sale, on the same terms as Vail was able to - 25
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EXHIBIT C
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EXHIBIT D
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IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SUMMIT COUNTY
STATE OF UTAH
GREATER PARK CITY COMPANY, a Utah corporation, and GREATER
PROPERTIES, DECLARATION OF ANTHONY C. INC., a Delaware corporation,
IANNAZZO
Plaintiffs, vs. Case No. 120500157 UNITED PARK CITY MINES
COMPANY, a Delaware corporation, TALISKER LAND Judge Ryan Harris
HOLDINGS, LLC, a Delaware limited liability company, TALISKER LAND
RESOLUTION LLC, a Delaware limited liability company, VR CPC
HOLDINGS, INC., a Delaware corporation, FLERA, LLC, a Delaware
limited liability company, TALISKER CANYONS LEASECO LLC, a Delaware
limited liability company, TALISKER CANYONS FINANCE CO LLC, a
Delaware limited liability company, and JOHN DOE CORPORATIONS 1
THROUGH 10,
Defendants.
I, Anthony C. Iannazzo, a United States citizen over the age of
21 years, hereby state and
declare as follows:
1. I have first-hand knowledge of the matters stated in this
affidavit, and if called to
do so, could testify competently to them at any hearing.
2. I am an investment professional at V5rde Partners, Inc.
("Varde"), the manager of
Fiera, LLC ("Fiera").
1
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3. In my capacity as an investment professional at Varde, I have
responsibility for
overseeing and managing Flera's investment in TCFC Finance Co
LLC (f/k/a Talisker Canyons
Finance Co LLC) ("TCFC"). TCFC has two Members, Fiera and TCFC
Holding Co LLC. Fiera
is presently the Manager of TCFC.
4. Effective June 6, 2013, I was appointed as one of Flera's two
representatives on
TCFC's Executive Committee. I have since continued to serve on
that Executive Committee.
5. By the time I was appointed to TCFC's Executive Committee,
the May 2013
transactions regarding Vail's lease of Canyons Resort and
contingent right to lease Talisker Land
Holdings, LLC's land underlying Park City Mountain Resort
("PCMR") (the "Lease") had
already been executed.
6. Based on my review of the Lease, I believe it was the best
transaction for TCFC
and its subsidiaries to undertake and was the best way for TCFC
and its subsidiaries to maximize
the value from both Canyons and the PCMR land.
7. I understand that Talisker Land Holdings, LLC ("TLH") seeks
to evict Plaintiffs
from the land at issue in this case and that PCMR has opposed
TLH's pending unlawful detainer
action on the ground that, in PCMR's view, there is a lack of
clarity as to whether TLH or Fiera
should be granted possession of the property. Fiera supports
that eviction and would make the
same decision to evict PCMR if it were in a position to do so as
a result of a ruling from this
Court.
8. I also understand that PCMR has sought an order seeking to
unwind the May
2013 transaction. While Fiera would, of course, comply with any
Court order, Fiera has learned 2
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of no new infoiniation that would change its views of the best
way for TLH to maximize the
value of its assets.
I declare under criminal penalty of the State of Utah that the
foregoing is true and correct
to the best of my knowledge and understanding.
Executed on April 7, 2014.
Anthony C. Iannazzo
3
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EXHIBIT E
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John R. Lund (4368)
Kara L. Pettit (8659)
SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, 11th
Floor
Post Office Box 45000
Salt Lake City, UT 84145-5000
Telephone: (801) 521-9000
Facsimile: (801) 363-0400
Howard M. Shapiro (pro hac vice)
Jonathan E. Paikin (pro hac vice)
Christopher E. Babbitt (pro hac vice)
WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 663-6000
Facsimile: (202) 663-6363
Attorneys for Defendants United Park City Mines Company,
Talisker Land Holdings, LLC, Talisker Land Resolution LLC,
and Talisker Canyons LeaseCo LLC
IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR
SUMMIT COUNTY STATE OF UTAH
GREATER PARK CITY COMPANY, a Utah
corporation, and GREATER PROPERTIES,
INC., a Delaware corporation,
Plaintiffs/Counterclaim Defendants,
vs.
UNITED PARK CITY MINES COMPANY, a
Delaware corporation, and TALISKER LAND
HOLDINGS, LLC, a Delaware limited liability
company, et al.,
Defendants/Counterclaimants.
ORDER OF RESTITUTION
Case No. 120500157
Judge Ryan Harris
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TO GREATER PARK CITY COMPANY, a Utah Corporation, and
GREATER
PROPERTIES, INC., a Delaware Corporation:
Within 60 calendar days following service of this Order of
Restitution, you must vacate
the premises that were the subject of the Resort Area Lease and
the Crescent Ridge Lease and
that covered the approximately 3,700 acres of land referred to
as the Leased Premises in these
proceedings, remove your machinery, equipment, personal
property, and supplies not affixed to
the soil and restore possession of the premises to the
defendants Talisker Land Holdings, LLC
and United Park City Mines Company, a Delaware Corporation, or
be forcibly removed by a
sheriff or constable. Furthermore, you have the right to a
hearing as to contest the manner of
enforcement of this Order of Restitution, in accordance with
Utah Code 78B-6-812.
If you fail to comply with this Order of Restitution, the
sheriff or constable may, at the
direction of defendants, enter the premises by force using the
least destructive means possible to
remove you, your personal property and any persons claiming a
right to occupancy from you.
TO THE SHERIFF OR CONSTABLE:
If Greater Park City Company and Greater Properties, Inc., after
being served with this
Order of Restitution in accordance with Utah Code 78B-6-812,
fail to comply within the time
period prescribed above, you are commanded to, at defendants
direction, enter the premises by
force using the least destructive means possible to remove
Greater Park City Company and
Greater Properties, Inc., any machinery, equipment, personal
property, and supplies not affixed
to the soil , and any persons claiming a right to occupancy from
them.
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DATED this ________ day of ____________, 2014.
BY THE COURT:
________________________
Honorable Ryan Harris
Third District Court Judge
Insert from: "Exhibits A through E.pdf"Exhibit A - Responses to
Additional FactsExhibit B - Excerpts from April 8, 2014
HearingExhibit C - Declaration of Jack BistricerExhibit D -
Declaration of Anthony IannazzoExhibit E - Order of Restitution