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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, LLC’S 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
SUMMARY Nearly three years after their Leases expired, GPCC/GPI remain in unlawful possession of Talisker’s 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 decisions—first 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/GPI’s 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 Talisker’s right of possession. Plaintiffs have 2
conceded that their POS and ROFR rights were extinguished in August of 2013 by Talisker’s 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 14–23. 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 Talisker’s current right to be restored possession of all of its lands. Third, as discussed in Section III, GPCC/GPI’s 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/GPI’s argument that the Court cannot rule on this unlawful detainer motion until after an appellate court reviews all of the Court’s 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 3
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 Court’s decision, or seek a stay of the order, there is a clearly prescribed process for seeking such relief.
RESPONSE TO GPCC/GPI’S STATEMENT OF ADDITIONAL FACTS None of GPCC/GPI’s 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 Talisker’s motion. Talisker’s response to GPCC/GPI’s 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 tenant’s 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 Talisker’s real property. Talisker’s Statement of Undisputed Facts (“SOF”) ¶13; Pltfs.’ Response to Defs.’ SOF ¶ 13. If the Court denies Plaintiffs Motion for Reconsideration and grants Talisker’s Motion for Summary Judgment on Plaintiffs’ Equitable and Nondisclosure Claims, the Court will have determined that the Leases expired.
GPCC/GPI were duly served with a notice to quit on August 28, 2013. SOF ¶¶ 89; 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).
TALISKER’S MOTION IS TIMELY. GPCC/GPI argue that Talisker’s motion was both too late and too early. Neither is
correct. A. Talisker’s Motion Is Not Too Late.
GPCC/GPI’s assertion that the “deadline to file all dispositive motions was February 7, 2014,” Pltfs.’ Opp. Mem. at 8, and that, therefore, Talisker’s Motion is late, is not correct. The Court’s 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/GPI’s 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 Talisker’s unlawful
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). 5
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 Court’s denial of GPCC/GPI’s motion to dismiss the unlawful detainer claim on February 20, 2014, and GPCC/GPI’s 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. Talisker’s Motion Is Not Premature.
GPCC/GPI assert that Talisker’s motion is premature because the Court has not yet adjudicated their motion for reconsideration, nor has the Court ruled on Talisker’s motion for partial summary judgment on GPCC/GPI’s 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/GPI’s Leases expired. The Court heard those motions on April 3, and if the Court rules in Talisker’s 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 Talisker’s 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/GPI’s argument here would be mooted. But, even if the Court
does not grant summary judgment to Talisker on the POS/ROFR claims, the those claims have no bearing on Talisker’s 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 14–23. But neither Talisker, nor any of its parent company’s members, has any interest in selling or re-leasing any portion of the premises to GPCC/GPI—both have made clear that they believe the Vail transaction to be in Talisker’s 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 Talisker’s 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 7
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 TLH’s 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 8
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/GPI’s ROFR claims had any merit, and setting aside the fact that Vail’s ultimate interests in the unimproved portions of the land are a lease and an easement,2 not fee ownership, GPCC/GPI’s 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/GPI’S 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
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).
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. 9
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 court’s restitution order that directed tenants to leave their personal property on the premises was decided at enforcement hearing after judgment was rendered). GPCC/GPI’s 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 Talisker’s 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). 10
detainer statute which could not be more explicit regarding the immediacy of eviction. In a section titled “Judgment for restitution, damages, and rent—Immediate enforcement—treble 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/GPI’s 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/GPI’s equitable claims and denies their motion for reconsideration, then: 11
The Court should grant Talisker’s 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 Talisker’s 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.
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. 12
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
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 Court’s Electronic Filing System: Alan L. Sullivan (3152) Jonathan A. Dibble (0881) Amber Mettler (11460) RAY QUINNEY & NEBEKER P.C. Snell & Wilmer L.L.P. 36 South State Street, Suite 1400 15 West South Temple, Suite 1200 P.O. Box 45385 Salt Lake City, Utah 84101-1004 Salt Lake City, Utah 84145-0385 Attorneys for Plaintiffs 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 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 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 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______________
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 Talisker’s 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 Resort’s ski terrain is covered by the Leases, the Resort’s 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
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 don’t 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/GPI’s assertions in this paragraph are immaterial to whether GPCC/GPI are in unlawful detainer of Talisker’s 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 Talisker’s 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.)
Defendants’ Response: This assertion is not a statement of fact, and GPCC’s 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.
THIRD JUDICIAL DISTRICT COURT, SILVER SUMMIT IN AND FOR SUMMIT COUNTY, STATE OF UTAH
GREATER PARK CITY COMPANY, et al., Plaintiffs, v UNITED PARK CITY MINES COMPANY, et al., Defendants.
: Case No. 120500157 : : : : : : : : : With Keyword Index
MOTION HEARING APRIL 8, 2014 BEFORE JUDGE RYAN HARRIS
CAROLYN ERICKSON, CSR CERTIFIED COURT TRANSCRIBER 1775 East Ellen Way Sandy, Utah 84092
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 around it. like?
THE COURT: I’m just MR. QUINN: THE COURT:
So what is that order going to look
I think the order would simply - having a hard time getting my mind
- be that the provisions of that deal
that relate to the PCMR lands would be held to be in violation of the seventh and eighth and therefore would be required to be undone and not any more complicated than that. You’re not going to order what they do next. Let’s move over to the Vail
THE COURT: All right. transaction.
Unwinding that seems a little simpler to me in It’s
my mind anyway because that hasn’t fully ripened yet. contingent in a lot of ways on what happens here.
So if I
were to say, Hey, we’re going to unwind that deal and go back to how everybody was positioned on May 23, 2013, all right I think I understand that but help me understand what happens next, right? You don’t contend I’ll give you my - today standing here today, you don’t
MR. QUINN: THE COURT:
contend that as of today the prohibition on sale and the right of first refusal are still in effect, do you? MR. QUINN: No, because I do agree that once they
served the notice to quit that that effectively extinguished them. But we’re not talking about that date. We’re talking 106
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about going back prior to that date. THE COURT: Correct. So if I unwound it and I
entered an order that said that entire deal that went down in May of 2013 is just void, it’s done, none of it is good any more, what’s MR. QUINN: would have to do that. Yeah, I don’t think you necessarily You would simply - you could do that
but I also think that you could sign an order that said that to the extent that the provisions of that deal - remember a great deal of that deal had to do with the Canyons, that it’s only this other piece, you know, which was obviously important to Katz THE COURT: Fair enough. But let’s assume just for
simplicity sake I said the whole thing is just done because you know it affects the whole - I don’t know what argument you would make for getting me to do it, just for simplicity hypothetical say, let’s say I unwound the entire transaction and said let’s just void, it’s done, ripping it up. Given
you concession that prohibition on sale and the right of first refusal are no longer in effect, what’s to prevent those same folks from entering into that same deal the day after my order? MR. QUINN: Your Honor, as I sit here I can’t say
that I can say there’s anything to prevent that but at that point, given what we now know and what 107
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At least with regard to the prohibition
on sale, I guess I should say. MR. QUINN: What we now know is in fact the
property is greatly encumbered, that it’s not clear that Vail ever understood how encumbered it was. At that point it may
be that we would be able to negotiate a new deal, I don’t know. I don’t know. We do know that the property right now
cannot be operated by Vail as a ski resort because it doesn’t have access to the key things it needs. So the parties
position has changed and maybe the leverage changes significantly. THE COURT: You think you’d have a shot at
negotiating something maybe you couldn’t have before? MR. QUINN: THE COURT: Yes, absolutely. What about that argument that Mr.
Shapiro and I engaged in a very brief colloquy about with regard to the ROFR? Assuming that you’re right about
everything else leading up to the ROFR, what do I make of the Hawaii Supreme Court’s case in Kakowski having to do with ROFR being triggered by an offer to purchase a larger parcel that has two smaller portions in it that are subject to the ROFR? Do you follow my question? MR. QUINN: THE COURT: MR. QUINN: I do follow your question and It was inartful. It seems to me that that finding by the 108
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Supreme Court would support our notion that in fact the ROFR has, is triggered, particularly in the circumstance here where you have a ban on sale. The facts there are a little
different because as I understood the facts you have this guy who owns, you know, a piece of land in the middle of a bunch of other land that I think they wanted to expand the golf course. By the way, that (inaudible) golf course is a very nice golf course. I think that is not quite the circumstances we have here. So I’m not sure that that portion of the opinion or
the Supreme Court’s decision is really all that relevant to the circumstances in this case. THE COURT: I know this hasn’t been really briefed
but your position would be that even assuming they’re right that the ROFR only applies to those two, are they red, pink MR. QUINN: THE COURT: MR. QUINN: THE COURT: Reddish pink. Only applies to those two parcels. Right. You think you would still have a right
to purchase those two parcels if in fact everything else fell into place for you here? MR. QUINN: THE COURT: Yes, Your Honor, that is our position. On the same terms as - assuming it’s a
sale, on the same terms as Vail was able to 109
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, vs. UNITED PARK CITY MINES COMPANY, a Delaware corporation, TALISKER LAND 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.
DECLARATION OF ANTHONY C. IANNAZZO Case No. 120500157 Judge Ryan Harris
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").
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
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
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, Judge Ryan Harris 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
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.
DATED this ________ day of ____________, 2014. BY THE COURT: ________________________ Honorable Ryan Harris Third District Court Judge