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, LLC’S
MEMORANDUM ON SETTING AN
APPROPRIATE BOND


Case No. 120500157
Judge Ryan Harris


i

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................6
I. GPCC/GPI MUST POST A BOND SUFFICIENT TO ENSURE THAT TALISKER
WILL BE ABLE TO RECOVER THE FULL AMOUNT OF THE DAMAGES IT
WILL BE OWED FOR GPCC/GPI’S WRONGFUL USE OF ITS PROPERTY
SINCE APRIL 30, 2011. .....................................................................................................6
A. Talisker Has Agreed To A Stay Of The Order Of Restitution Pending An
Appeal Despite The Appeal’s Lack Of Merit And The Substantial Hardships A
Stay Imposes. ...........................................................................................................6
B. GPCC/GPI Are Required To Post A Bond Whether Or Not They Pursue An
Interlocutory Appeal: A Bond Is Required Under Rule 62 And The Unlawful
Detainer Statute. .......................................................................................................8
1. Because there is an interlocutory appeal pending, Rule 62 is the proper
framework for determining a bond. .............................................................9
2. In the alternative, GPCC/GPI must post a possession bond under the
unlawful detainer statute. ...........................................................................10
C. The Purpose And MannerOf Computing The Bond Is The Same Under Either
Rule 62 Or The Unlawful Detainer Statute............................................................11
1. The bond must ensure that Talisker can collect on a judgment. ................11
2. If GPCC/GPI cannot afford an adequate bond, damages cannot
continue to accrue and no stay can issue. ..................................................13
3. The Court must estimate the probable amount of damages that will be
owed to Talisker at the end of the appellate process. ................................15
II. THE CALCULATION OF THE REASONABLE VALUE OF GPCC/GPI’S USE
AND OCCUPATION OF TALISKER’S PROPERTY .....................................................18
A. Resort Income ........................................................................................................21
B. Method One: The Cost Approach ..........................................................................23
ii

C. Method Two: The Income Approach .....................................................................23
D. Method Three: Market Approach ..........................................................................25
1. Northstar ....................................................................................................25
2. Canyons......................................................................................................26
3. PPI Lease ...................................................................................................28
E. The Annual Value of GPCC/GPI’s Use Of Talisker’s Property............................28
III. GPCC/GPI’S MITIGATION ARGUMENT IS WITHOUT MERIT ................................28
IV. ADDITIONAL STATUTORY DAMAGES AND FEES MUST BE INCLUDED IN
THE BOND AMOUNT .....................................................................................................31
A. To Provide Proper Security, The Bond Must Include All Components Of The
Judgment ................................................................................................................31
B. Calculation Of The Bond. ......................................................................................36
CONCLUSION ..............................................................................................................................37


iii

TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire to United Nations,
787 F. Supp. 389 (S.D.N.Y. 1992) ..........................................................................................14
Aldasoro v. Kennerson,
915 F. Supp. 188 (S.D. Cal. 1995) ...........................................................................................15
Am. Anthracite & Bituminous Coal Corp. v. Leonardo Arrivabene, S.A.,
280 F.2d 119 (2d Cir. 1960).....................................................................................................18
Bad Ass Coffee Co. of Hawaii, Inc. v. Bad Ass Coffee Ltd. P’ship,
No. 2:99-CV-00150, 2000 WL 33710901 (D. Utah Feb. 24, 2000) ........................................37
Clearone Commc’ns, Inc. v. Chiang,
No. 2:07-CV-37-TC-DN, 2009 WL 5216856 (D. Utah Dec. 30, 2009) ..................................34
Cooper v. Hartford Fin. Servs. Grp., Inc.,
No. Civ. A. 04-003832005 WL 1378907 (D.D.C. June 9, 2005) ............................................32
Gordon Johnson Co. v. Hunt,
109 F. Supp. 571 (N.D. Ohio 1952) .........................................................................................17
Grubb v. Fed. Deposit Ins. Corp.,
833 F.2d 222 (10th Cir. 1987) .................................................................................................14
In re AMR Corp.
No. 11-15463 (Bankr. S.D.N.Y.) (filed Jan. 31, 2013) ............................................................34
In re Integrated Health Servs., Inc.,
289 B.R. 32 (Bankr. D. Del. 2003) ..........................................................................................19
In re Liggett,
118 B.R. 219 (Bankr. S.D.N.Y. 1990) .................................................................................7, 14
J. Perez & CIA., Inc. v. United States,
747 F.2d 813 (1st Cir. 1984) ..............................................................................................11, 12
Janigan v. Taylor,
344 F.2d 781 (1st Cir. 1965) ....................................................................................................20
iv

Mead Johnson & Co. v. Abbott Labs.,
201 F.3d 883 (7th Cir. 2000) ...................................................................................................17
N. Am. Prods. Corp. v. Moore,
196 F. Supp. 2d 1217 (M.D. Fla. 2002) ...................................................................................17
Nken v. Holder,
556 U.S. 418 (2009) ...................................................................................................................6
Olympia Equip. Leasing Co. v. W. Union Tel. Co.,
786 F.2d 794 (7th Cir. 1986) ...................................................................................................17
Pharmacia Corp. v. Motor Carrier Servs. Corp.,
Civ. No. 04-3724 (GEB), 2008 WL 852255 (D.N.J. Mar. 28, 2008) ......................................17
Phoenix Assoc., Inc. v. Pagoda Int’l, Inc. (In re Pagoda Int’l, Inc.),
26 B.R. 18 (Bankr. D. Md. 1982) ..............................................................................................7
President Casinos, Inc. v. Columbia Sussex Corp. (In re President Casinos, Inc.),
360 B.R. 262 (B.A.P. 8th Cir. 2007)........................................................................................17
Sheldon v. Metro-Goldwyn Pictures Corp.,
106 F.2d 45 (2d Cir. 1939).......................................................................................................20
Sletten v. Navellier Series Fund,
No. 3:00-cv-0167, 2006 WL 2335566 (D. Nev. Aug. 10, 2006) .............................................14
SMC Corp., Ltd. v. Lockjaw, LLC,
481 F. Supp. 2d 918 (N.D. Ill. 2007) .......................................................................................17
Triangle Oil & Gas, Inc. v. Petsec Energy, Inc.,
No. Civ. A. 06-0251, 2006 WL 1751209 (W.D. La. June 20, 2006).......................................17
Triple Net Inv. IX, LP v. DJK Residential, LLC (In re DJK Residential, LLC),
No. 08-10375 (JMP), 2008 WL 650389 (S.D.N.Y. Mar. 7, 2008) ..........................................14
United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd.,
210 F.3d 1207 (10th Cir. 2000) ...............................................................................................37
United States v. O’Callaghan,
805 F. Supp. 2d 1321 (M.D. Fla. 2011) ...................................................................................12
v

STATE CASES
4447 Assocs. v. First Sec. Fin.,
889 P.2d 467 (Utah Ct. App. 1995) .........................................................................................30
AHCI, Inc. v. Lamar Adver. of Tenn., Inc.,
898 S.W.2d 191 (Tenn. 1995) ..................................................................................................18
Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt., Inc.,
2006 UT 45, 143 P.3d 278 .......................................................................................................18
Beaver Cnty. v. WilTel, Inc.,
2000 UT 29, 995 P.2d 602 .......................................................................................................19
Bichler v. DEI Systems, Inc.,
2009 UT 63, 220 P.3d 1203 .......................................................................................................9
Bjork v. April Indus., Inc.,
560 P.2d 315 (Utah 1977) ........................................................................................................34
Cambridge Mut. Fire Ins. Co. v. Spinosa,
972 N.E.2d 1063, 2012 WL 3599828 (Mass. App. Ct. Aug. 23, 2012) ..................................17
Diversified Holdings, L.C. v. Turner,
2002 UT 129 ............................................................................................................................12
Eide v. Bierbaum,
472 N.W.2d 193 (Minn. Ct. App. 1991) ..................................................................................17
Forrester v. Cook,
292 P. 206 (Utah 1930) .................................................................................................... passim
Fowler v. Seiter,
838 P.2d 675 (Utah Ct. App. 1992) ...............................................................................2, 13, 32
Golden Meadows Props., LC v. Strand,
2010 UT App 257, 241 P.3d 375 .......................................................................................33, 34
Great Am. Ins. Co. v. R.R. Furniture Salvage of Mobile, Inc.,
162 So. 2d 488 (Ala. 1964) ......................................................................................................29
Guzzetta v. Serv. Corp. of Westover Hills,
7 A.3d 467 (Del. 2010) ......................................................................................................16, 17
vi

Hogle v. Zinetics Med., Inc.,
2002 UT 121, 63 P.3d 80 .........................................................................................................19
Jensen v. Schwendiman,
744 P.2d 1026 (Utah Ct. App. 1987) .......................................................................................10
Kennecott Corp. v. State Tax Comm’n,
814 P.2d 1099 (Utah 1991) ........................................................................................................9
Mahana v. Onyx Acceptance Corp.,
2004 UT 59, 96 P.3d 893 .........................................................................................................29
Osborn v. Tax Comm’n,
2009 UT App 222, 217 P.3d 274 .............................................................................................22
Osguthorpe v. Wolf Mountain Resorts, LC,
2010 UT 29, 232 P.3d 999 ...................................................................................................6, 15
Pingree v. Cont’l Grp. of Utah, Inc.,
558 P.2d 1317 (Utah 1976) ......................................................................................................18
Red Cliffs Corner, LLC v. J.J. Hunan, Inc.,
2009 UT App 240, 219 P.3d 619 .............................................................................................32
Reid v. Mutual of Omaha Ins. Co.,
776 P.2d 896 (Utah 1989) ........................................................................................................29
Richards v. M&M Capital, LLC,
2012 UT App 59, 273 P.3d 396 ...............................................................................................16
Salt Lake City S. R.R. Co. v. Utah State Tax Comm’n,
1999 UT 90, 987 P.2d 594 .................................................................................................19, 20
Shaia v. City of Richmond,
153 S.E.2d 257 (Va. 1967).......................................................................................................21
T-Mobile USA, Inc. v. Utah State Tax Comm’n,
2011 UT 28, 254 P.3d 752 .................................................................................................22, 23
Taylor Nat’l, Inc. v. Jensen Bros. Constr. Co.,
641 P.2d 150 (Utah 1982) ..........................................................................................................8
TruGreen Cos., L.L.C. v. Mower Bros., Inc.,
2008 UT 81, 199 P.3d 929 .......................................................................................................19
vii

Truong v. Holmes,
2009 UT App 212, 2009 WL 2331871 (Utah Ct. App. July 30, 2009) .......................13, 32, 34
Wells Fargo Bank NA v. Cox,
2012 UT App 136, 279 P.3d 841 .............................................................................................16

STATE STATUTES
Utah Code Ann. § 15-1-1 .....................................................................................................2, 13, 34
Utah Code Ann. § 70A-9a-204 ......................................................................................................30
Utah Code Ann. § 78B-6-802 ........................................................................................................32
Utah Code Ann. § 78B-6-808 ................................................................................................ passim
Utah Code Ann. § 78B-6-811 ................................................................................................ passim
Utah Code Ann. § 78B-6-812 ........................................................................................4, 10, 12, 14

RULES
Utah R. App. P. 4 .......................................................................................................................9, 10
Utah R. App. P. 5 .......................................................................................................................9, 10
Utah R. App. P. 8 ...........................................................................................................................10
Utah R. Civ. P. 54 ................................................................................................................9, 10, 11
Utah R. Civ. P. 62 .................................................................................................................. passim

OTHER AUTHORITIES
49 Am. Jur. 2d Landlord and Tenant § 278 ...................................................................................19
60 Am. Jur. 2d Payment § 48 .........................................................................................................29
36A C.J.S. Forcible Entry & Detainer § 75 ..................................................................................19
viii

Christopher Smart, Will Park City Mountain Resort have a ski season? — Maybe, Salt
Lake Tribune, July 28, 2014 ................................................................................................4, 15
Nan C. Noaker, Resort Heads Cumming and Katz: talking but deadlocked, Park Record,
May 30, 2014 .............................................................................................................................3
Restatement (Second) of Property, Land. & Ten. § 14.5, cmt. c & illus. 3 (1977) ............18, 29,30

1

INTRODUCTION
Substantial damages have accrued and will continue to accrue from GPCC/GPI’s use of
Talisker’s property since April 30, 2011. Even though the Court ruled that GPCC/GPI have been
unlawfully detaining Talisker’s property and ordered the property restored to Talisker’s
possession, GPCC/GPI seek to stay that order, remain on the property and continue to generate
revenue and profits from its use. For that to be allowed, while the litigation continues in this
Court and in the appellate courts, the required bond must be enough to assure payment to
Talisker of its expected damages. As will be fully explained below and in light of the damages
from GPCC/GPI’s use of the property in the past and while the litigation is completed, if
GPCC/GPI want to remain in possession of Talisker’s property, they must provide adequate
assurance of full payment when this Court’s judgments are affirmed on appeal, which is a bond
of no less than $----- million, as summarized in the chart below.
1

Damages incurred for past use and occupation

Damages during trial & appeal
FY 12 FY 13 FY 14 May-Aug Fees Subtotal

1st year 2nd year Fees Total
$----M $----M $----M $----M $---M $----M

$----M $----M $---M $-----M

This figure reflects rent during the period of over five years that GPCC/GPI will have been in
unlawful detainer (at approximately 50% of GPCC/GPI’s earnings and management fees each
year), plus the statutorily required trebling (from September 2013), interest, and attorneys’ fees.
The size of the bond is merely the impact of PCMR choosing to remain on the land in hopes their

1
GPCC/GPI designated its financial information as either Attorneys Eyes Only or Attorneys’
Eyes Only – Tier 2 under the protective order. The amount of damages owed, and thus, the bond
amount, is derived, in large part, from these numbers. Accordingly, Talisker redacted this
information from the publicly filed version of this brief. Talisker is very willing to make these
numbers public, so long as GPCC/GPI’s profitability is also disclosed in order to provide full
context.
2

remote chance for appeal is successful, and the statutory disincentives required under Utah law
to discourage unlawful use of another parties’ property.
GPCC/GPI’s leases with Talisker expired over three years ago, on April 30, 2011. Since
that time, GPCC/GPI have earned in excess of $-- million from their use of Talisker’s property
while paying nothing for its occupancy and use, even refusing to pay monies into escrow.
Talisker is owed the “reasonable value of the use and occupation of the premises.” Forrester v.
Cook, 292 P. 206, 214 (Utah 1930). Virtually all of the ski terrain at the Resort belongs to
Talisker, and according to GPCC/GPI’s own experts, over 77% of the Resort’s revenue is
directly attributable to their use of Talisker’s property.
2
In addition, since the time that
GPCC/GPI were served with a Notice to Quit on August 28, 2013, it is “mandatory upon the
court” to treble the amount owed. Fowler v. Seiter, 838 P.2d 675, 679 (Utah Ct. App. 1992)
(internal quotation marks omitted). Talisker is also owed prejudgment interest at 10 percent
annually, Utah Code Ann. § 15-1-1(2), and entitled to its attorneys’ fees. Utah Code Ann. §
78B-6-811(3). GPCC/GPI already owe nearly $-- million in damages, and the number will
continue to climb so long as GPCC/GPI occupy Talisker’s property.
The damages owed to Talisker arise from GPCC/GPI’s willful decision to remain in
possession of Talisker’s property unlawfully, with full knowledge since April 2011 that they had
failed to provide the required notice under the lease. GPCC/GPI chose to remain in possession
of Talisker’s property unlawfully after November 2012, when this Court dismissed a number of
their claims and cast doubt on the other remaining ones. GPCC/GPI chose to remain in

2
See Ex. A, Declaration of Philip Cook, Ex. 3, Declaration of Gregory D. Adams (June 12,
2014) ¶ 9 (“Adams Declaration”); see also Ex. A, Cook Decl., Ex. 4, Declaration of Gil A.
Miller (June 12, 2014), Schedule 2.1 (“Miller Declaration”).
3

possession of Talisker’s property unlawfully after being served a Notice to Quit in August 2013,
with full knowledge that under Utah law they would be liable for treble damages if they were
found to be in unlawful detainer. And GPCC/GPI have chosen to remain in possession of the
property unlawfully, even after this Court dismissed all remaining relevant claims in May 2014.
Talisker’s damage claim, including trebling, interest and attorneys’ fees cannot be a surprise to
GPCC/GPI and are not being foisted on them. The damage claim results from GPCC/GPI’s
calculated and deliberate business decision to remain in possession of Talisker’s property
without a valid lease.
GPCC/GPI still refuse to leave and instead seek a stay of the Court’s restitution order
pending appeal. The chances that this Court’s decisions will be reversed are exceedingly remote.
As the Court observed, “[i]t is indeed rare to have not one, but four, Utah Supreme Court cases
… more or less directly on point here, dating back more than a century with recent affirmation.”
May 21, 2014, Memorandum Order & Opinion 52. Indeed, GPCC/GPI’s CEO publicly admitted
that a reversal would require the Supreme Court to change the law.
3
In the meantime, both
Talisker and its new tenant, Vail, are harmed by their inability to make productive use of
Talisker’s property. Vail is prevented from making upgrades and moving forward with its plan
to combine Park City Mountain Resort (“PCMR”) with Canyons, and both Talisker and Vail are
deprived of the substantial revenue they could earn if Vail were able to use this property for its
operations.

3
See Nan C. Noaker, Resort Heads Cumming and Katz: talking but deadlocked, Park Record,
May 30, 2014 (“‘We think the law in the state is inadequate for this situation. Half the states in
the union don’t allow this kind of thing to happen,’ Cumming said, referring to Utah’s strict lease
laws.”).
4

In light of community concerns created by GPCC/GPI’s threats to use their ownership of
the base to block access to the mountain, Talisker chose not to oppose the stay provided that
GPCC/GPI post a bond sufficient to ensure that Talisker can collect on the judgment it will be
owed, as required by law. See Utah R. Civ. P. 62(c); Utah Code Ann. § 78B-6-812(2)(b).
Despite the tens of millions of dollars a year that GPCC/GPI have made—and continue to
make—from their use of Talisker’s property, GPCC/GPI have indicated that they may not have
sufficient funds to pay the ultimate judgment in this case. Moreover, GPCC/GPI now suggest
that they may not be able to “afford” an appropriate bond.
4
A review of GPCC/GPI’s financial
information confirms that the Resort’s profits from the past three years have been dissipated to
pay dividends to shareholders, affiliated debt payments, and excessive management fees to its
parent. The named party that operates the Resort, GPCC (Greater Park City Company), is a
Powdr Corp. subsidiary and retains almost none of the money generated by the Resort.
According to GPCC’s balance sheet (as of April 26, 2014), it has a --------------------- and only $-
million of current assets (counting its inventory and receivables owed to it). Ex. A, Cook Decl.,
Ex. 4, Miller Declaration, Schedule 3. The other named party, Greater Properties, Inc. (“GPI”)
is, according to sworn testimony from its president, a shell corporation for Cumming Investment
Company with no assets, other than the now-expired Talisker Leases. Ex. C, Ireland Dep. 8:5-9,
Dec. 17, 2013.

4
Pls.’ Stay Mem. 19 (“Plaintiffs will post security in any amount required by the Court which
Plaintiffs are able to afford”); Christopher Smart, Will Park City Mountain Resort have a ski
season? — Maybe, Salt Lake Tribune, July 28, 2014, at A1 (“Allan Sullivan, who represents
[GPCC/GPI], said Monday that his client may be amenable to posting a bond if it is not too
steep.”).
5

In any event, GPCC/GPI’s protestations about their ability to obtain financing for a bond
are irrelevant to the calculation of a proper bond. See Ex. D, Hrg. Tr. 64:18-25, June 19, 2014.
And the concern about GPCC/GPI’s willingness to provide an appropriate bond only heightens
Talisker’s need for full security: the purpose of a bond is precisely to protect the judgment
against such poorly capitalized companies. For a stay to issue, GPCC/GPI must post a bond
sufficient to ensure Talisker’s right to recover the damages it has incurred to date, as well as the
damages that will be owed for the period until GPCC/GPI’s appeal is decided. Needless to say,
in the unlikely event that GPCC/GPI prevail in their appeal, Talisker will not collect on the bond.
But if GPCC/GPI want to remain in possession of Talisker’s property, a bond must be posted
sufficient to ensure that Talisker is not left with an empty judgment.
In Section I, we explain the legal framework for calculating the bond. In Section II, we
set forth the basis for Talisker’s calculations of the annual “reasonable value of the use and
occupation of the premises.” Forrester, 292 P. at 214. In Section III, we analyze GPCC/GPI’s
mitigation argument that they should be allowed to use and occupy Talisker’s property for free
since May 2013 because of the Canyons transaction between Vail and Talisker. Finally, in
Section IV, we set forth the additional statutory damages that will be included in a final
judgment and also must be protected by a bond.
6

ARGUMENT
I. GPCC/GPI MUST POST A BOND SUFFICIENT TO ENSURE THAT TALISKER
WILL BE ABLE TO RECOVER THE FULL AMOUNT OF THE DAMAGES IT
WILL BE OWED FOR GPCC/GPI’S WRONGFUL USE OF ITS PROPERTY
SINCE APRIL 30, 2011.
A. Talisker Has Agreed To A Stay Of The Order Of Restitution Pending An
Appeal Despite The Appeal’s Lack Of Merit And The Substantial Hardships
A Stay Imposes.
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. The
statute expressly requires that “execution upon the judgment shall be issued immediately after
the entry of the judgment,” Utah Code Ann. § 78B-6-811(4)(a), and that the judgment “shall
include an order for the restitution of the premises.” Utah Code Ann. § 78B-6-811(1)(b). A stay
is an “intrusion into the ordinary processes of administration and judicial review,” and “is not a
matter of right, even if irreparable injury might otherwise result to the appellant.” Nken v.
Holder, 556 U.S. 418, 427 (2009) (internal quotation marks omitted). Talisker’s decision not to
oppose a stay during the pendency of an appeal is an extraordinary concession.
That is especially so because the Court’s May 21 decision left no question about the
ultimate fate of this case. See May 21, 2014, Memorandum Order & Opinion 40 (“The Geisdorf
cases apply here with full force.”); id. at 54 (“And despite full opportunity to conduct
comprehensive discovery, the PCMR Parties cannot point to anything sufficiently specific or
unambiguous to surmount the summary judgment hurdle”); id. at 56 (“Simply put, there is no
evidence pointing to any actual reliance whatsoever.”). GPCC/GPI have essentially no chance of
success on appeal. On the strict compliance issue, a favorable outcome for GPCC/GPI would
require the Utah Supreme Court to overturn 100 years of settled law that was recently affirmed in
7

cases the Court described as “more or less directly on point.” Id. at 52. To overturn the Court’s
decision on the lease renewal issues, the appellate court would have to question the Court’s
interpretation of the facts on a full record—and overlook GPCC/GPI’s failure to provide any
facts to support their allegations.
Talisker, and its prospective tenant Vail, suffer substantial harm from being “deprived of
the immediate right to possession of the subject premises.” Phoenix Assoc., Inc. v. Pagoda Int’l,
Inc. (In re Pagoda Int’l, Inc.), 26 B.R. 18, 22 (Bankr. D. Md. 1982). Talisker has been deprived
of its property for over three years at this point, and during that time GPCC/GPI have refused to
pay a reasonable value for the use of the property, or even to pay that amount into escrow. Cf. In
re Liggett, 118 B.R. 219, 222-23 (Bankr. S.D.N.Y. 1990) (denying stay of eviction pending of
appeal, where, among other factors, tenant did not make any payments for use and occupancy in
the months the case was pending). Meanwhile, Vail has been (and will continue to be) deprived
of its ability to realize revenue from the PCMR property to which it is entitled through its
Canyons lease with Talisker, and Talisker has consequently been deprived of receiving the
additional percentage rent that would result from that operation.
These harms are real, continuing and escalating. Despite these harms, Talisker is
sensitive to community concerns should GPCC/GPI block access, and thus does not oppose a
stay so long as GPCC/GPI post a bond sufficient to ensure Talisker will be able to collect on its
judgment after this Court is affirmed on appeal.
8

B. GPCC/GPI Are Required To Post A Bond Whether Or Not They Pursue An
Interlocutory Appeal: A Bond Is Required Under Rule 62 And The Unlawful
Detainer Statute.
At the telephonic status conference on August 6, 2014, the Court observed that there is
some uncertainty as to whether GPCC/GPI will pursue an interlocutory appeal and asked the
parties to address whether the bond amount should be decided under Utah Rule of Civil
Procedure 62 or the unlawful detainer statute. GPCC/GPI have initiated the appeals process, but
have done so in a bizarre way that indicates they may prefer to delay final resolution of
possession for as long as possible.
5
GPCC/GPI’s procedural maneuvering cannot change the fact
that whichever standard is applied, a bond is required in an amount sufficient to ensure collection
of the probable damages that will be owed when a final judgment is entered. Talisker believes
that the current procedural posture requires the Court to look to Rule 62 because there is an
interlocutory appeal pending. Talisker is confident in its legal position, and welcomes prompt
appellate review of the Court’s decision. In the event GPCC/GPI decide not to pursue an
interlocutory appeal, the Court should look to the unlawful detainer statute to determine the
bond. Either way, if GPCC/GPI are intent on delay, Utah law requires that they post a bond to
cover the resulting risks and costs.

5
So long as there is some remote chance that this Court may be reversed, GPCC/GPI can
continue to assert that they should remain in possession of Talisker’s property. Indeed, every
additional ski season it retains possession translates to over $-- million in EBITDAR for GPCC,
providing a powerful incentive to delay the litigation process for as long as possible. While
GPCC/GPI have the right to appeal, Talisker has the right to be protected by a bond to ensure
that it will be able to recover its damages – no matter how long GPCC/GPI drag out that process.
Indeed, while Talisker has agreed not to oppose a stay, it should be noted that without a pending
appeal, the legal basis for a stay nearly evaporates. The Supreme Court has made clear that a
trial court cannot stay its own orders indefinitely. See Taylor Nat’l, Inc. v. Jensen Bros. Constr.
Co., 641 P.2d 150, 154 (Utah 1982) (vacating indefinite stay of execution).
9

1. Because there is an interlocutory appeal pending, Rule 62 is the
proper framework for determining a bond.
The Court entered judgment that GPCC/GPI are in unlawful detainer of Talisker’s
property. Talisker does not oppose immediate appellate review of that decision – or any other
decision of this Court. The current procedural posture is as follows:
 GPCC/GPI allowed the twenty-day deadlines under Rule of Appellate Procedure
5 to pass without seeking permission from the Utah Supreme Court to appeal on
an interlocutory basis.
 On July 10, 2014, GPCC/GPI filed a Notice of Appeal under Appellate Rule 4,
but also filed a motion for summary disposition before the Supreme Court
questioning the Court’s jurisdiction. The Supreme Court has not ruled on the
motion, and the appeal is currently docketed and pending.
 In an unusually equivocal manner, GPCC/GPI also filed a motion, on June 17,
2014, with this Court seeking Rule 54(b) certification, but argued against their
own motion.
Talisker does not oppose Rule 54(b) certification, and believes the Court has the authority
to do so under Bichler v. DEI Systems, Inc., 2009 UT 63, 220 P.3d 1203, in which the Supreme
Court held: “Recognizing the important public policy of providing a speedy resolution of
possession, we hold that in an unlawful detainer action with multiple claims or counterclaims, a
Rule 54(b) entry of final judgment resolving the issue of possession is proper when it includes all
claims and counterclaims that are necessary to determine lawful possession of the property.” Id.
¶ 30.
6
In the event the Supreme Court determines Rule 54(b) certification was not proper,
Appellate Rule 5 provides that a timely appeal from the certification may “be considered by the

6
Just as in Bichler, the remaining damages claims in this case have no bearing on the question of
possession. Notably, the Supreme Court in Bichler, after citing the “[n]ormal[]” approach to
finality in Kennecott Corp. v. State Tax Comm’n, 814 P.2d 1099 (Utah 1991), announced the
special application to unlawful detainer actions quoted above, motivated by the public policy in
favor of speedy resolution. 2009 UT 63, ¶ 30.
10

appellate court as a petition for permission to appeal an interlocutory order.” Utah R. App. P.
5(a). In other words, GPCC/GPI’s failure to previously seek leave to appeal within twenty days
from the various decisions related to possession can be cured if they take the appropriate steps to
appeal after this Court’s Rule 54(b) certification. Again, Talisker will not oppose any efforts to
seek immediate review of this Court’s decisions.
A Rule 4 appeal is currently pending and there is a clear path under Rule 54(b) and
Appellate Rule 5 to obtain interlocutory review. Accordingly, the bond should be analyzed
under Rule 62(c), which governs stays of injunctive relief (such as an order of restitution)
pending appeal. See, e.g., Jensen v. Schwendiman, 744 P.2d 1026, 1027 (Utah Ct. App. 1987)
(holding motion to stay order suspending driving privileges was request for order “granting an
injunction during the pendency of an appeal” under Appellate Rule 8(a), which tracks Rule
62(c)).
2. In the alternative, GPCC/GPI must post a possession bond under the
unlawful detainer statute.
Even without a pending appeal, a bond would be required under the unlawful detainer
statute to stay the order of restitution pending a manner of enforcement hearing. Utah Code Ann.
§ 78B-6-812(2)(b); Utah Code Ann. § 78B-6-808(4)(b)(vi). Under Section 78B-6-812, the Court
“may not stay enforcement of the restitution order unless: (i) the defendant furnishes a corporate
bond, cash bond, certified funds, or a property bond to the clerk of the court in an amount
approved by the court according to the formula set forth in Subsection 78B-6-808(4)(b); and (ii)
the court orders that the restitution order be stayed.” Utah Code Ann. § 78B-6-812(2)(b).
Section 78B-6-808 similarly provides that “[i]f … the court allows the defendant [here,
GPCC/GPI] to remain in possession and further issues remain to be adjudicated between the
11

parties, the court shall require the defendant to post a bond as required in Subsection (4)(b).”
Utah Code Ann. § 78B-6-808(6).
C. The Purpose And Manner of Computing The Bond Is The Same Under
Either Rule 62 Or The Unlawful Detainer Statute.
The purpose and approach to determining the bond is the same under Rule 62 and the
unlawful detainer statute. First, the bond must ensure that Talisker will be able to collect on the
probable amount of judgment that will be owed. As Talisker’s damages are ongoing and rapidly
accruing, it is particularly important that the bond cover both already-incurred and prospective
damages. GPCC/GPI cannot continue to reap the benefits of their unlawful occupation if they
cannot post a bond sufficient to pay for the damages already incurred and those that will be
created by their refusal to vacate. If they will not post a bond, GPCC/GPI must return possession
of the property to its owner so that the damage does not continue to grow. Second, the questions
that GPCC/GPI have raised over their ability to afford an appropriate bond only serve to
reinforce the requirement for them to post sufficient security in order to obtain a stay and retain
possession as long as they can. Third, in setting the amount of the bond, the Court must make a
preliminary determination as to the probable amount of the judgment.
1. The bond must ensure that Talisker can collect on a judgment.
Under Rule 62(c), a stay will be granted only “upon such conditions as [the court]
considers proper for the security of the rights of the adverse party.” Utah R. Civ. P. 62(c).
7


7
See also Utah R. Civ. P. 62(h) (granting stay of judgment certified as final under Rule 54(b)
upon “such conditions as are necessary to secure the benefit, thereof to the party in whose favor
the judgment is entered.”); J. Perez & CIA., Inc. v. United States, 747 F.2d 813, 815 (1st Cir.
1984) (“We need not decide definitely, however, which subsection applies, for the district court
possesses adequate power under Rule 62 to require a bond that will ‘protect an enforceable
judgment’ in favor of its winner, and protect the winner from any subsequent harm suffered
12

Generally, “proper” security consists of a bond in the full amount of the judgment, plus
protection for any harms incurred as a result of the pendency of the stay – “whether or not the
judgment is monetary in nature.” J. Perez & CIA., Inc. v. United States, 747 F.2d 813, 815 (1st
Cir. 1984); see also United States v. O’Callaghan, 805 F. Supp. 2d 1321, 1324 (M.D. Fla. 2011)
(noting long history of requiring “full security during an appeal”). “A supersedeas bond protects
a judgment creditor’s interest by providing a surety to whom the creditor may look should the
appeal fail and the judgment debtor’s financial position so deteriorate between judgment and
disposition of the appeal that payment of the judgment by the debtor becomes impossible.”
Diversified Holdings, L.C. v. Turner, 2002 UT 129, ¶ 39.
The same is true under the unlawful detainer statute. See Utah Code Ann. § 78B-6-
812(2)(b). “The court shall approve the bond in an amount which is the probable amount of
costs of suit, including attorney fees and actual damages which may result to the plaintiff if the
defendant has improperly withheld possession.” Utah Code Ann. § 78B-6-808(4)(b)(vi). The
damages “which may result to the plaintiff” are defined by the statute and Supreme Court
precedent. Utah Code Ann. § 78B-6-811(2) provides that “[t]he jury or the court, if the
proceeding is tried without a jury or upon the defendant’s default, shall also assess the damages
resulting to the plaintiff from any of the following: . . . (b) forcible or unlawful detainer.”
Longstanding Utah Supreme Court precedent establishes that “[r]ental value or reasonable value
of the use and occupation of the premises becomes an element of damages for retaining

through appellate delay.” (citation omitted)).
13

possession. This is not rent, it is damages.” Forrester v. Cook, 292 P. 206, 214 (Utah 1930)
(emphasis added).
8

2. If GPCC/GPI cannot afford an adequate bond, damages cannot
continue to accrue and no stay can issue.
GPCC/GPI have a choice to make: either return possession of the property to Talisker or
post a bond sufficient to ensure that Talisker will be paid for their use of the property. As of
now, GPCC/GPI owe more than three years of payment for their use and occupation of
Talisker’s property, and the last of those years is trebled. It is also responsible for significant
attorneys’ fees and prejudgment interest. The amount owed is already very substantial, and
recovery of those damages is uncertain. Although they have made --------------------------- in the
past few years, GPCC/GPI refused to set any money aside in escrow and have instead paid
substantial dividends to their owners, serviced affiliated debt payments, and paid excessive
management fees to their parent corporation. As of April 26, 2014, GPCC had ---------------------
--------- and only $- million of current assets (counting its inventory and receivables owed to it).
Ex. A, Cook Decl., Ex. 4, Miller Declaration, Schedule 3. Moreover, once the order of
restitution is enforced, GPCC’s ability to survive as a going concern outside of bankruptcy is in
doubt (and GPI will be left as an asset-less shell). No one disputes that GPCC will be a much

8
As discussed in Section IV, the statute provides that from the date the Notice to Quit was
served, it is “‘mandatory upon the court to render judgment for three times the amount of
damages thus assessed.’” Fowler v. Seiter, 838 P.2d 675, 679 (Utah Ct. App. 1992) (quoting
Forrester, 292 P. at 214); see Utah Code Ann. § 78B-6-811(3). The judgment must also include
“the rent, for three times the amount of the damages assessed under Subsections (2)(a) through
(2)(e) and for reasonable attorney fees.” Id. And, like any other money judgment under Utah
law, unlawful detainer damages are subject to prejudgment interest at 10 percent annually. Utah
Code Ann. § 15-1-1(2); see also Truong v. Holmes, 2009 UT App 212, 2009 WL 2331871, at *3
(Utah Ct. App. July 30, 2009) (unpublished) (applying prejudgment interest to the treble
damages portion of the unlawful detainer award in addition to the base rent portion).
14

smaller and less profitable entity. GPCC/GPI’s own expert indicated lost profits of over $--
million next year alone. Deterioration at these levels calls into question GPCC’s ability to
service its existing debt.
Nevertheless, GPCC/GPI want to keep the meter running until their appeal is decided. If
GPCC/GPI cannot secure Talisker’s right to payment for their use of Talisker’s property, no stay
can issue under either Rule 62 or the unlawful detainer statute. See In re Liggett, 118 B.R. at
222-23 (Bankr. S.D.N.Y. 1990) (denying stay of eviction pending of appeal, where, among other
factors, tenant did not make any payments for use and occupancy in the months the case was
pending); Utah Code Ann. § 78B-6-812(2)(b) (court may not “stay enforcement of the restitution
order unless: (i) the defendant furnishes a corporate bond”). Simply put, the bond ensures that
Talisker’s ultimate judgment is not likely to be “worthless.” 767 Third Ave. Assocs. v.
Permanent Mission of Republic of Zaire to United Nations, 787 F. Supp. 389, 396 (S.D.N.Y.
1992) (denying stay of eviction against financially troubled tenant incurring “rapidly escalating”
damages); see also Sletten v. Navellier Series Fund, No. 3:00-cv-0167, 2006 WL 2335566, at *2
n.1 (D. Nev. Aug. 10, 2006) (denying further stay, where judgment “has now likely exceeded the
full amount of the bond”). A bond should “secure the judgment throughout the appeal process
against the possibility of the judgment debtor’s insolvency.” Grubb v. Fed. Deposit Ins. Corp.,
833 F.2d 222, 226 (10th Cir. 1987); see also Triple Net Inv. IX, LP v. DJK Residential, LLC (In
re DJK Residential, LLC), No. 08-10375 (JMP), 2008 WL 650389, at *5 (S.D.N.Y. Mar. 7,
2008) (denying stay where party unable to post bond “has not demonstrated why this Court
‘should deviate from the ordinary full security requirement.’”).
15

In an interview with the Salt Lake Tribune, GPCC/GPI’s counsel conceded, as he must,
that “[w]e have to post a bond to get a stay of the eviction order.” Christopher Smart, Will Park
City Mountain Resort have a ski season? — Maybe, Salt Lake Tribune, July 28, 2014, at A1. See
also Hrg. Tr. 64:18-25, June 19, 2014 (explaining that if the bond is “more than the defendant
can afford . . . I’m not aware that that should prevent the judgment from going forward.”); id.
65:13-19 (“MR. SHAPIRO: Right, and just as the Court indicated, and if the Court decides at
that point that there should be a further stay upon posting of a sufficient bond, and they’re unable
to do that, then presumably there’s not a stay. THE COURT: That would be correct. That’s how
it works.”).
Moreover, GPCC/GPI’s arguments about ability to pay ring hollow when its principals—
Powdr Corp. and the Cumming family—have the financial wherewithal to post a bond. See
Aldasoro v. Kennerson, 915 F. Supp. 188, 192 (S.D. Cal. 1995) (requiring impoverished
plaintiffs to post bond for a stay, where litigation was funded by federally funded legal services
organization). The Cummings and Powdr Corp. cannot be allowed to pay themselves millions of
dollars from GPCC/GPI’s revenues, and then insulate themselves from judgment by placing their
GPCC subsidiary in bankruptcy. If the plaintiffs want to gamble on an appeal, they must do so
with their own (or their corporate parents’) money, not Talisker’s.
3. The Court must estimate the probable amount of damages that will be
owed to Talisker at the end of the appellate process.
GPCC/GPI’s requested stay comes at a time before the Court has finally adjudicated the
damages claims. That is so because the number one priority in the unlawful detainer context is
to return possession of property to its rightful owner as expeditiously as possible. Osguthorpe,
2010 UT 29, ¶ 23. The statute contemplates a bifurcated process where possession is determined
16

and enforced, and the damages are worked out later. See, e.g., Wells Fargo Bank NA v. Cox,
2012 UT App 136, ¶ 3, 279 P.3d 841; Richards v. M&M Capital, LLC, 2012 UT App 59, ¶ 3,
273 P.3d 396. This case is somewhat unusual because GPCC/GPI have chosen to remain in
possession of the property (with the trebled meter running), after the Court determined they have
no right to possession. As noted above, GPCC/GPI cannot enjoy the property without payment
for that period, dissipate corporate assets, and then declare themselves judgment-proof through
bankruptcy. Thus, the law requires GPCC/GPI to post a bond sufficient to ensure Talisker is
able to recover its damages. If it cannot, then it must return the property to Talisker so that
damages that likely can never be collected do not continue to accrue.
Although bonds most often are used to protect final monetary judgments, it is also
common for a court to be in the position of setting a bond to protect against damages that will be
decided later. Indeed, when this arises in the unlawful detainer context, even before issues of
possession are decided, the statute requires courts to estimate the “probable” amount of damages.
See Utah Code Ann. § 78B-6-808(2)(b)(iv) (setting standard for possession bond). A similar
issue arises in other contexts, including the issuance of preliminary injunctions, where the court
must set a bond to protect the enjoined party for the “likely” harms resulting from an improperly
issued injunction. See, e.g., Guzzetta v. Serv. Corp. of Westover Hills, 7 A.3d 467, 469 (Del.
2010) (“[T]he trial court should set the bond at a level likely to meet or exceed a reasonable
17

estimate of potential damages”).
9
The current situation—in which GPCC/GPI have essentially
sought to enjoin the return of Talisker’s property—is closely analogous, although with the
obvious difference that here Talisker already has a judgment in its favor.
In setting an appropriate bond, courts have discretion to employ a variety of means in
various contexts to estimate probable damages. The goal in this context is not to calculate the
precise amount of damages owed, but rather to arrive at an estimate that allows for a bond
sufficient to ensure collection of the eventual judgment. See, e.g., Triangle Oil & Gas, Inc. v.
Petsec Energy, Inc., No. Civ. A. 06-0251, 2006 WL 1751209 (W.D. La. June 20, 2006) (setting
injunction bond of $700,000, based on briefing).
10
Moreover, because Talisker might not
recover anything beyond the bond, the Court “should err on the high side.” See Mead Johnson &

9
See also, e.g., Cambridge Mut. Fire Ins. Co. v. Spinosa, 972 N.E.2d 1063, 2012 WL 3599828,
at *2 (Mass. App. Ct. Aug. 23, 2012) (“The Superior Court has inherent equitable authority to
order a bond as security for a likely liability for a liquidated or measurable amount of
damages.”); President Casinos, Inc. v. Columbia Sussex Corp. (In re President Casinos, Inc.),
360 B.R. 262, 266 (B.A.P. 8th Cir. 2007) (“[T]he bond must bear a rational relationship to the
defendant’s probable damages.”).
10
See also, e.g., Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 801 (7th Cir. 1986)
(Easterbrook, J., concurring) (finding “full hearing” inappropriate where “hearing would be so
complex, and of so little value in relation to the gains from a little extra precision”); Pharmacia
Corp. v. Motor Carrier Servs. Corp., Civ. No. 04-3724 (GEB), 2008 WL 852255, at *4 (D.N.J.
Mar. 28, 2008) (setting supersedeas bond of $3 million—six times current damages—despite no
clear way to ascertain scope of prospective damages); SMC Corp., Ltd. v. Lockjaw, LLC, 481 F.
Supp. 2d 918, 930 (N.D. Ill. 2007) (setting injunction bond of $500,000, based on estimated loss
of 15% of profits); N. Am. Prods. Corp. v. Moore, 196 F. Supp. 2d 1217, 1232 (M.D. Fla. 2002)
(setting injunction bond of $500,000, based on estimated allocation of gross revenues); Gordon
Johnson Co. v. Hunt, 109 F. Supp. 571, 576 (N.D. Ohio 1952) (approximating bond by
estimating revenues and profit margin over six months). Cf. Eide v. Bierbaum, 472 N.W.2d 193,
194 (Minn. Ct. App. 1991) (“The bond amount represents a prospective view of damages and not
a determination of actual damages. As a result, we will not review the amount of the bond with
the same degree of scrutiny involved in reviewing a determination of actual damages.”).
18

Co. v. Abbott Labs., 201 F.3d 883, 888 (7th Cir. 2000) (explaining standard for preliminary
injunction bond).
II. THE CALCULATION OF THE REASONABLE VALUE OF GPCC/GPI’S USE
AND OCCUPATION OF TALISKER’S PROPERTY
As noted above, Talisker is entitled to recover the “reasonable value of the use and
occupation of the premises” by GPCC/GPI. Forrester v. Cook, 292 P. 206, 214 (Utah 1930).
See also Pingree v. Cont’l Grp. of Utah, Inc., 558 P.2d 1317, 1322 (Utah 1976) (“reasonable
rental value”).
11
Three related principles guide the analysis.
First, the damages are restitution for GPCC/GPI’s wrongful use of the property and
therefore must focus on the value that GPCC/GPI derived from the property. See Restatement
(Second) of Property, Land. & Ten. § 14.5, reporter’s note 2 (1977) (landlord’s entitlement to
recover “reasonable value” during a holdover tenancy “simply requires the tenant to pay for what
he got”); AHCI, Inc. v. Lamar Adver. of Tenn., Inc., 898 S.W.2d 191, 195 (Tenn. 1995) (“[I]n
accordance with the traditional equitable doctrines of quantum meruit or unjust enrichment,” a
tenant is liable for “fair market rental value”); Am. Anthracite & Bituminous Coal Corp. v.
Leonardo Arrivabene, S.A., 280 F.2d 119, 126 (2d Cir. 1960) (“[T]he measure of compensation
to which the lessor is entitled is . . . the fair value of the benefit conferred upon the estate . . .
rather than the compensation of the creditor for the loss to him.”).
Second, the value that GPCC/GPI received stems from the use that they made from
Talisker’s property and not what other uses might be made of that property by someone else in a
different circumstance. Determining the value GPCC/GPI derived from the use of the property

11
These damages include not only the fair rental value of the real estate, but also depreciation
and any other harm to personal property. Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt., Inc.,
2006 UT 45, ¶ 20, 143 P.3d 278.
19

is not a hypothetical exercise. Talisker’s property was used as a vital asset in an integrated
resort, and the value GPCC/GPI received from that property is reflected in GPCC’s audited
financial statements. See 49 Am. Jur. 2d Landlord and Tenant § 278 (“In determining rental
value, it is proper to consider that the premises involved has a greater value for a certain purpose
than for another, even though such rental value would far exceed that for the original use of the
premises.”); see also Salt Lake City S. R.R. Co. v. Utah State Tax Comm’n, 1999 UT 90, ¶ 21,
987 P.2d 594 (reasoning that in taxation context “‘unitary appraisals” value the synergistic nature
of a business’s collective property.”); Beaver Cnty. v. WilTel, Inc., 2000 UT 29, ¶ 40, 995 P.2d
602 (“[F]air market value reflects the benefit stream created by unitary operation of tangible
property.”).
Third, “the assets of a company are of value chiefly because of their earning capacity.”
Hogle v. Zinetics Med., Inc., 2002 UT 121, ¶ 32, 63 P.3d 80 (internal quotation marks and
alternations omitted). “[T]he reasonable value of the rents and profits, or the rental value, of the
land is an element of damage which is generally to be taken into consideration.” 36A C.J.S.
Forcible Entry & Detainer § 75; see also In re Integrated Health Servs., Inc., 289 B.R. 32, 36
(Bankr. D. Del. 2003) (adopting expert’s opinion that fair rental value was approximately 95.7%
of earnings before interest, taxes, depreciation, amortization, and rent, or 70-85% of such
earnings before deduction of management fees).
12
Now that the Court has ruled GPCC/GPI’s

12
The Court’s dismissal of Talisker’s claim for disgorgement of profits does not change the
analysis. As a general matter, even if a defendant’s profits cannot be directly recovered, they
may be good evidence of damage to the plaintiff. See, e.g., TruGreen Cos., L.L.C. v. Mower
Bros., Inc., 2008 UT 81, ¶ 17, 199 P.3d 929 (considering profits as a basis for damages resulting
from the breach of a non-compete clause). Moreover, the Court did not preclude any
consideration of profits, only their disgorgement as a remedy for Talisker’s unjust enrichment
20

continued possession to be illegal, it is Talisker, not GPCC/GPI, that should be benefitting from
its occupied property. GPCC/GPI are not entitled to profit from their wrongdoing.
Consistent with these principles, and as set forth in greater detail in the accompanying
declaration, Talisker’s expert has calculated the reasonable value of GPCC/GPI’s use and
occupancy, reconciling standard cost-, income-, and market-based valuation approaches. See
Salt Lake City S. R.R. Co., 1999 UT 90, ¶ 14.
 Under the cost approach, discussed in Section II.B., reasonable rent is based on
land value plus the current cost of reproducing or replacing improvements.
Although GPCC/GPI were on the land unlawfully, this approach also credits them
with a reasonable net profit for operating the business.
 Under the income approach, discussed in Section II.C, a reasonable rent is
determined by allocating the income streams attributable to Talisker, and
subtracting out any expenses incurred by GPCC/GPI. Again, although
GPCC/GPI were on the land unlawfully, this approach also credits them with a
reasonable net profit for operating the business.
 Under the market approach, discussed in Section II.D, comparable commercial
real estate transactions with known rental prices are identified, and adjusted to
account for differences between the comparable property and the Talisker
property.

claim. Talisker is not seeking to disgorge all of the profits that GPCC/GPI earned, only the
portion of their earnings derived from their use and occupation of Talisker’s property. Nor is
Talisker seeking to recover any above-market windfalls that GPCC/GPI may have received. Cf.
Janigan v. Taylor, 344 F.2d 781, 786 (1st Cir. 1965) (“It is more appropriate to give the
defrauded party the benefit even of windfalls than to let the fraudulent party keep them.”). In
fact, even with respect to the monies GPCC/GPI earned from Talisker’s property, Talisker has
credited GPCC/GPI a five-percent management fee to compensate for their wrongful operation
of the premises, something it does not need to do. Cf. Sheldon v. Metro-Goldwyn Pictures Corp.,
106 F.2d 45, 51 (2d Cir. 1939) (“[A] plagiarist may not charge for his labor in exploiting what he
has taken.”).
21

A. Resort Income
As the first step of both the cost and income approaches, it is necessary to determine the
amount of income generated by the entire resort that will then be allocated between the property
owners.
13
Talisker’s expert has termed this amount of resort income “adjusted EBITDAR.”
14

This reflects the value of the tenant’s use of the property itself (which flows to the landlord as
rent) and removes the value of the operation of the resort (which flows to the operator through
management fees). A standard valuation approach for commercial real estate is to calculate
reasonable rent as “gross rents and profits” minus the “expense of management and operation.”
Forrester, 292 P. at 211 (internal quotation marks omitted). The Supreme Court of Virginia has
thus explained:
The annual fair economic rent is an amount that a typical buyer
should be willing to pay for the right to use and occupy the
premises for one year. Such a buyer might reasonably be expected
to pay annually for the . . . leasehold interest a price that he could
recoup from the operation of the [business] for one year after
paying operating expenses and setting aside a reasonable net profit.
Shaia v. City of Richmond, 153 S.E.2d 257, 265 (Va. 1967).
Talisker’s expert computed adjusted EBITDAR based on the reported EBITDA on
GPCC’s financial statements, and made three adjustments:
15


13
This step is unnecessary in the market approach, as the tenant’s reasonable net profit is
implicitly factored into the rent set for the comparable lease.
14
EBITDAR is a standard measure of income, and is an acronym for earnings before interest,
taxes, depreciation, amortization, and rent.
15
Because the question is the reasonable value of GPCC/GPI’s actual use and occupancy,
Talisker’s expert has relied on GPCC/GPI’s actual financial data in formulating an estimate
under the cost and income approaches. Such a methodology is not dependent on speculation
about PCMR’s future growth, and provides a reliable estimate of PCMR’s value over the past
three years.
22

(1) The Resort’s financials include rents paid (or due) as an expense, which
improperly decreases overall resort income for the purposes of estimating
reasonable rental value. Rents paid (or due) to PPI, GPI, and Talisker must be
added back in to avoid double-counting. The question before the court is what
GPCC/GPI should be paying for Talisker’s property, not what they are currently
paying (or owe) under related-party or below-market leases.

(2) GPCC/GPI’s management fees exceed industry standards. While Talisker’s
expert has credited GPCC/GPI with a reasonable management fee, or reasonable
net profit, for operating the resort, GPCC/GPI management’s average cut of -% of
revenues is unreasonably high—well above what is standard in the industry.
16

Allocating 5% of revenues to management is more consistent with standard
industry practice. See generally Forrester, 292 P. at 211 (operator entitled to “a
fair compensation for the necessary time and labor involved in the care and
management of the premises”) (internal quotation marks omitted).

(3) Talisker has credited GPCC/GPI for capital expenditures that would ordinarily be
needed to operate the business. Notably, it appears that GPCC/GPI have not been
making the investments in the Resort’s infrastructure that would be expected from
a ski resort operator with a long-term commitment to the property, but Talisker’s
expert has nonetheless estimated that average expenditures of 5% of revenue
would be necessary to maintain a resort with PCMR’s improvements in proper
condition.
17


After these adjustments, the Resort’s adjusted EBITDAR ranges from $---- million to $---
---- million, over the past three years. See Ex. A, Cook Decl., Schedule I-1. Talisker’s expert
has used cost and income approaches to accomplish the next step: allocating that value between
the Talisker property and the GPCC/GPI-controlled property. See Osborn v. Tax Comm’n, 2009
UT App 222, ¶ 7, 217 P.3d 274 (reasoning that “simply because the . . . sites being valued cannot
be sold separately” does not mean “there is no way to allocate the fair market values for those
acres.”); cf. T-Mobile USA, Inc. v. Utah State Tax Comm’n, 2011 UT 28, ¶ 5 n.3, 254 P.3d 752

16
Vail’s Northstar lease, for example, includes a 4% management fee.
17
Notably, this is higher than the estimate of ---%, provided by GPCC/GPI’s expert, Mr. Miller.
23

(explaining that in determining “value of property for tax purposes, the value of the property is
first calculated as a unit and then apportioned by county or state”).
B. Method One: The Cost Approach
Under the cost approach, Talisker’s expert looked at the value of the assets that Talisker
and GPCC/GPI each contributed to the overall operation of the resort, and divided the adjusted
EBITDAR accordingly. The key assets of the Resort include the land (primarily owned by
Talisker), improvements to the land (owned by both parties), and personal property (owned by
GPCC/GPI). Using a conservative estimate of $8,000 per acre for the PCMR ski terrain (based
on the hypothetical assumption that it were vacant), and excluding the currently undeveloped
White Pine lands, the land contributes approximately $23 million to the equation. See Ex. A,
Cook Decl., Schedule C-1.
18
The depreciated value of Talisker’s other assets is approximately
$---- million, compared to $---- million in improvements and personal property for GPCC/GPI.
See Ex. A, Cook Decl., Schedule C-2. Together, Talisker’s assets comprise -----% of the land
and property value of the entire resort. Using this allocation percentage, reasonable rent for the
past three years ranges from $---- million to $---- million per year. See Ex. A, Cook Decl.,
Schedule C-3.
C. Method Two: The Income Approach
Talisker’s expert also looked at the various sources of resort revenue, which are broken
out by department on GPCC’s financial statements. Instead of an overall aggregation
percentage, Talisker’s expert individually allocated the income from each of these departments

18
The actual market value of this property as improved would be significantly higher, as shown
by the annual rent for the PPI land of $----- per acre, which implies a sale value of $------ per
acre for the PPI land. See Ex. A, Cook Decl. ¶ 10 n.16.
24

to determine Talisker’s share. The reliability of this approach is confirmed by GPCC/GPI’s own
expert, Mr. Miller, who used a similar methodology – except with more Talisker-favorable
assumptions.
The first step of this approach is estimating the income attributable to each of the
departments. GPCC’s financials provide revenue breakdowns, but not expenses. Relying on
industry profitability averages, with appropriate adjustments to factor in GPCC’s actual
expenses, Talisker’s expert calculated the profit attributable to each of the departments. See Ex.
A, Cook Decl., 16¶.
The second step is allocating the individual income streams between Talisker and
GPCC/GPI.
 For mountain-based income streams (ski lift access and lessons),Talisker’s expert
allocated income on the basis of skier usage, using lift capacity (guests per hour)
and vertical transport feet per hour (VTF/H)
19
as proxies. Talisker’s expert
allocated these capacity measures based on the percentage of the lift located on
Talisker property, resulting in an overall allocation of 77.03% to Talisker, when
using lift capacity, and 83.16%, when using vertical transport feet per hour. Both
measures are lower than the allocation percentage selected by Mr. Miller.
 For the food and beverage income stream, Talisker’s expert allocated income
based on the location of the PCMR restaurants, and their relative size. This
resulted in an overall food and beverage allocation of 45% to Talisker.
 For all other income streams (retail, rental/repair, summer, and other), Talisker’s
expert allocated the vast majority to GPCC/GPI, recognizing that the base is the
primary source of those revenues.
Under these assumptions, Talisker’s overall allocation of income averaged approximately --%,
using the lift capacity allocation, or approximately --%, using the VTF/H allocation (with some

19
VTF/H is an industry-standard measure of skier capacity, calculated by multiplying lift
capacity by vertical rise, for each lift in the resort.
25

variation by year). See Ex. A, Cook Decl., Schedules I-3, I-4. Again, both of these numbers are
less than GPCC/GPI’s experts’ opinions that 77% of the Resort’s revenue was attributable to
Talisker’s property. At these allocation percentages, reasonable rent for the past three years
ranges from approximately $---- million to $---- million per year, using lift capacity, or
approximately $---- million to $---- million, using VTF/H. See id.
D. Method Three: Market Approach
Talisker’s expert has also identified three market comparables, the values of which are
largely consistent with the estimates from the income-based approach.
20

1. Northstar
21

Northstar is a mountain resort located in Lake Tahoe, California, with over 3,000 skiable
acres. In 2010, Vail entered into a lease with CNL to operate the Northstar resort. The
consideration was comprised of an annual rent with both fixed and variable components
(summing to $---- million in 2010), and a lump sum payment of $60.2 million. Ex. A, Cook

20
To the extent GPCC/GPI try to rely on Forest Service permits as comparables, that approach is
unsupportable because it is based on regulation and not arms-length transactions. All resorts in
Park City are operated on private land. The Forest Service’s process for setting fees is not
market-based. The Forest Service does not attempt to conduct an individualized assessment of
the market value of the ski terrain of each ski area. Furthermore, the permit has numerous
restrictions and terms that do not apply to a private lease. See, e.g., U.S. Forest Service Manual
2721.6 (Aug. 4, 2011) (among other conditions, requiring authorization for costly improvements
and permitting inspection for safety); U.S. Forest Service Handbook 2709.11, chp. 10 (Sept. 25,
2013) (setting forth permit application and authorization process); U.S. Forest Service Handbook
2709.14, chp. 60, section 61.3 (Apr. 15, 2011) (requiring permit-holder to “prepare and annually
revise an operating plan that covers all operations authorized by the permit,” subject to Forest
Service approval).
21
Talisker’s expert relied solely on publicly available information for its assessment of both
Northstar and Canyons and was not provided access to any of Vail’s confidential or proprietary
information. This exercise is not about Vail’s internal processes, but how these public
transactions support a reasonable market value for GPCC/GPI’s use and occupation of Talisker
property.
26

Decl., Schedule S-3; Id. ¶ 23. Talisker’s expert estimated that the lump sum payment was
equivalent to an annual cost of $---- million, for a total effective annual rent of approximately
$---- million.
From that base rent, Talisker’s expert then estimated what the comparable rent would be
for PCMR, using several different units of comparison (skier days, lift capacity, VTF/H, skiable
acres, and EBITDAR). Factoring in these units of comparison, Talisker’s expert estimated that
the total rent for PCMR would be approximately $---- million, or approximately 9% more than
the rent for Northstar. As a final step, Talisker’s expert then allocated a portion of the estimated
rent for the entire resort to Talisker, using the same average allocation percentage as the income
approach. Under these assumptions, reasonable rent is estimated at approximately $---- million
per year. See Ex. A, Cook Decl., Schedule S-5.
2. Canyons
Canyons is the resort neighboring PCMR in Park City. The resort is comparable, given
its similar size and close proximity. As the Court is aware, Vail entered into a transaction with
Talisker’s corporate affiliates in 2013 to operate Canyons and receive a contingent interest in
Talisker’s PCMR terrain, for a total annual rent of $25 million. As the portion of the lease not
attributable to the Canyons is attributed to PCMR, this comparable provides insight into the
market price for not only a closely comparable resort, but the subject property itself.
To isolate the Canyons portion of the transaction, Talisker’s expert looked at information
provided in Vail’s publicly filed financials and investor presentations. At a projected EBITDAR
of $15 million and capitalization rate of 9%, the Canyons resort comprises 54.41% of the overall
27

transaction’s value. See Ex. A, Cook Decl., Schedule S-6. This results in an implied rent of
approximately $---- million for Canyons alone. Ex. A, Cook Decl., Schedule S-7.
As with the Northstar comparable, Talisker’s expert estimated a comparable rent for the
entirety of PCMR, using several units of comparison. Factoring in these same units of
comparison, Talisker’s expert estimated that the total rent for PCMR would be approximately
$---- million, or approximately 39% more than the implied rent for Canyons. The Talisker
portion of that total was estimated in the same way as Northstar, resulting in a reasonable rent
estimate of $---- million per year. See Ex. A, Cook Decl., Schedule S-8.
This analysis also permits direct valuation of the PCMR property. If $---- million is
allocated to the Canyons component, that leaves $---- million of the annual rent to be allocated to
the Talisker-owned portion of the PCMR property itself. Because this is a contingent interest, it
necessarily includes a litigation discount for the risk of not being able to use the property and the
delay in obtaining those rights. The difference between the value of the contingent interest and
the reasonable rent based on the Canyons comparable reflects a discount of approximately 14%.
In any case, this sets a market-based floor for what the reasonable rent of the Talisker property
would be: if a third party in the market is willing to pay over $-- million per year for a contingent
interest, the value of the actual interest unlawfully held by GPCC/GPI must be more than that.
This final point is critical, because rather than a landlord trying to estimate historical market rent
being a purely theoretical exercise, the landlord in this case (Talisker) brought in a prospective
tenant for the same property, providing an arms-length confirmation of its value.
28

3. PPI Lease
Park Properties, Inc., a corporation initially formed by GPCC’s creditors and ultimately
acquired by the Cumming family in 2007, owns approximately 206 acres of ski terrain located
between Talisker’s land and the GPCC/GPI base. GPCC leases this land from PPI for $--------
annually, for a per acre price of $-----. Multiplying Talisker’s 2,852 acres (excluding the White
Pine lands) by this amount yields an annual rent of approximately $---- million.
E. The Annual Value of GPCC/GPI’s Use Of Talisker’s Property
The final step in arriving at a valuation is to reconcile the approaches discussed above
into a best-fit estimate. Relying on upon all three of the different methodologies, Talisker’s
expert arrived at a best fit value of $---- million for 2011-12, $----- million for 2012-13, and
$XXX million for 2013-14, with a 2% cost of living increase in revenues for each subsequent
year.
III. GPCC/GPI’S MITIGATION ARGUMENT IS WITHOUT MERIT
In a letter dated June 4, 2014, related to a discovery dispute, GPCC/GPI argued that
Talisker is not entitled to any damages for unlawful detainer, including the reasonable value of
GPCC/GPI’s use of the property, since May 2013 because “such damages have no doubt been
fully mitigated by Talisker’s agreement to lease the property to Vail. See Reid v. Mutual of
Omaha Ins. Co., 776 P.2d 896, 906 (Utah 1989).” Letter dated June 4, 2014, from A. Sullivan to
J. Lund. Thus, GPCC/GPI argue that they owe nothing for their use of Talisker’s property since
May 2013, and that they can continue to occupy the property rent-free. This argument is
preposterous.
29

First and foremost, Talisker cannot “mitigate” the harm it suffers from GPCC/GPI’s
unlawful possession so long as GPCC/GPI remain on the premises. Mitigation in the landlord-
tenant context applies where a tenant vacates early and the landlord is tasked with trying to re-
lease the property to offset the unpaid rent for the period remaining on the lease. See, e.g., Reid
v. Mutual of Omaha Ins. Co., 776 P.2d 896 (Utah 1989). GPCC/GPI have not vacated, making
mitigation inapplicable.
Second, GPCC/GPI’s argument is contrary to the “collateral source” rule, which provides
that a wrongdoer may not have his or her damages “reduced by proof that the plaintiff has
received or will receive compensation or indemnity for the loss from an independent collateral
source.” Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 37, 96 P.3d 893 (affirming district
court’s refusal to use a damaged party’s previous receipt of bond proceeds to offset the
compensatory damages award) (internal quotation marks omitted); see also Great Am. Ins. Co. v.
R.R. Furniture Salvage of Mobile, Inc., 162 So. 2d 488, 495 (Ala. 1964) (“It is not a defense to
the merits in favor of one withholding money due that the plaintiff has received compensation
from a third party, and this applies in contract as well as in tort.”); 60 Am. Jur. 2d Payment § 48
(same). GPCC/GPI are not entitled to use the property rent-free by taking credit for payments
made by Vail or any other third party.
Third, that Talisker has secured a new prospective and contingent tenant is of no matter.
Authorities recognize that landlords have the right to proceed against holdover tenants even after
a new tenant has been secured. See Restatement (Second) of Property, Land. & Ten. § 14.5, cmt.
c & illus. 3 (1977). In such circumstances, any potential for double recovery is addressed by the
landlord’s obligation “to account to the incoming tenant” for any amount “recovered from the
30

tenant improperly holding over,” id., not by relieving the holdover tenant of the obligation to pay
in the first place. Talisker and Vail accounted for GPCC/GPI’s holding over in their May 2013
transaction.
Finally, GPCC/GPI ignore the actual structure of the Vail transaction. As this Court is
well aware, in May 2013, TCFC LeaseCo and VR CPC Holdings, Inc., a wholly owned
subsidiary of Vail Resorts, Inc., reached a deal covering the property at both Canyons Resort and
Park City Mountain Resort. Vail agreed to pay $25 million annually. In return, Vail obtained
(1) possession of the Canyons; (2) an option to rent the Talisker-owned property at PCMR once
Talisker regained possession; and (3) assignment of the proceeds from Talisker’s claims if
GPCC/GPI did not vacate, or, in the event of an unfavorable outcome, assignment of
GPCC/GPI’s rent payments. See Ex. B, Tuttle Decl., Ex. 1, Assignment of Rents. Vail also
negotiated the right to manage Talisker’s participation in the litigation and effectuate any
settlement.
Through these agreements, Vail bought an option to either possess the property or be
compensated for its inability to do so by taking an interest in the proceeds that GPCC/GPI will
owe for their wrongful occupation of what should be Vail’s leasehold. It is standard commercial
practice for an entity to sell (or pledge as collateral) future income or expected proceeds from a
debt or judgment. See, e.g., 4447 Assocs. v. First Sec. Fin., 889 P.2d 467, 469 (Utah Ct. App.
1995) (describing the assignment of payments receivable as security for a commercial loan);
Utah Code Ann. § 70A-9a-204 (permitting the creation of a security interest in after-acquired
capital); cf. §§ 70A-9a-401–409 (describing rights of third parties in secured transactions). No
one (except GPCC/GPI, apparently) would ever suggest that money received from the purchase
31

of proceeds from a claim vitiates the underlying claim. To illustrate, GPCC/GPI’s argument is
essentially as follows: (1) Talisker has a claim against GPCC/GPI for $5; (2) Talisker separately
agreed with Vail that if Vail pays it $3 today, it will assign the proceeds from its $5 claim to Vail
when it is received in the future; (3) According to GPCC/GPI, it now owes Talisker only $2.
This is a perverse concept of “mitigation,” to say the least.
IV. ADDITIONAL STATUTORY DAMAGES AND FEES MUST BE INCLUDED IN
THE BOND AMOUNT
Talisker’s damages for GPCC/GPI’s unlawful use and occupation are augmented by
various statutory provisions, consistent with the unlawful detainer statute’s policy of
expeditiously restoring landlords to possession of their property. These amounts must also be
included in the bond.
A. To Provide Proper Security, The Bond Must Include All Components Of The
Judgment
Because GPCC/GPI is in illegal possession and refuses to vacate, Talisker is statutorily
entitled to treble damages, attorneys’ fees, and prejudgment interest. See infra Section IV.B.
For the bond to serve its purpose of protecting the ultimate judgment against GPCC/GPI’s
insolvency, it must cover all of these amounts.
22
It may be inconvenient and expensive for
GPCC/GPI or their principals to post a full bond, but an under-compensatory bond would
override the reasoned policy judgments of the legislature.

22
Although Utah Rule of Civil Procedure 62(j) presumes a monetary judgment, it provides
guidance on what proper security for a stay of injunctive relief must, at a minimum, include.
Rule 62(j) makes clear that a supersedeas bond must cover both attorney’s fees and prejudgment
interest. See Utah R. Civ. P. 62(j)(2)(A) (“the presumptive amount of a bond for compensatory
damages is the amount of the compensatory damages plus costs and attorney fees, as applicable,
plus 3 years of interest at the applicable interest rate”). The rule does not expressly discuss
other statutory damages, such as the mandatory trebling of unlawful detainer damages, but as
explained below, such damages should also be included.
32

Treble Damages: In order to encourage the expeditious resolution of landlord-tenant
disputes, the unlawful detainer statute makes it “‘mandatory upon the court to render judgment
for three times the amount of damages thus assessed.’” Fowler v. Seiter, 838 P.2d 675, 679
(Utah Ct. App. 1992) (quoting Forrester, 292 P. at 214); see Utah Code Ann. § 78B-6-811(3).
Treble damages begin to accrue five days after notice to quit is served, Utah Code Ann. § 78B-6-
802(1)(b)(ii), and include any rents due after that point, see Forrester, 292 P. at 214. Talisker
served GPCC/GPI with a Notice to Quit on August 28, 2013.
GPCC/GPI have indicated they will argue that the bond should not include treble
damages, although they have not yet stated the basis for this argument. In the unlawful detainer
context, treble damages are not extraordinary, but a “routine award of damages.” Red Cliffs
Corner, LLC v. J.J. Hunan, Inc., 2009 UT App 240, ¶ 43, 219 P.3d 619. They represent the
price for GPCC/GPI making a conscious and premeditated decision to remain on Talisker’s
property after being serviced with a Notice to Quit, with full awareness that if they were found to
be in unlawful detainer they would be subject to treble damages. Trebled unlawful detainer
damages are subject to a bond requirement, just like other statutory damages. See, e.g., Truong
v. Holmes, 2006 WL 6569031 (Case No. 040920717 Third Dist. Ct. Salt Lake County, Order on
Attorney Fees, Costs and Amount of Bond dated Nov. 28, 2006, attached as Exhibit E) (order
imposing supersedeas bond in full amount of judgment, including treble damages awarded on
November 15, 2006 (see 2006 WL 6569032) attached as Exhibit F); cf. Cooper v. Hartford Fin.
Servs. Grp., Inc., No. Civ. A. 04-003832005 WL 1378907, at *5 (D.D.C. June 9, 2005) (bond
includes statutory damages under Truth in Lending Act). The stated purpose of a supersedeas
bond is to “protect the judgment creditor against loss” and “assures payment in the event the
33

judgment is affirmed.” Utah R. Civ. P. 62(j)(1). There is no question that the “judgment” in this
case will include “three times the amount of damage” assessed for unlawful detainer. The only
way to assure payment of Talisker’s judgment is to include treble damages in the amount of the
bond.
Excluding treble damages would frustrate the statutory policy of encouraging an
expeditious return of possession to the landlord and would provide inappropriate incentives.
23
If
GPCC/GPI do not have the funds today to pay the expected damages they owe Talisker that have
accrued so far, they have nothing to lose by appealing. If they lose their appeal, they will still be
unable to pay. It is only Talisker that loses, as a fourth or fifth year goes by without receiving
appropriate compensation or access. The legislature made the policy judgment to protect
property owners against such recalcitrant tenants by imposing mandatory treble damages (along
with attorneys’ fees and prejudgment interest) for the unlawful detainer.
Attorneys’ Fees: The legislature also made the judgment to deter dilatory litigation
tactics by forcing a recalcitrant tenant to consider the risk of paying the landlord’s attorneys’ fees
in the event the tenant is found to be in unlawful detainer. Thus, Talisker is entitled to recover
its attorneys’ fees under Utah’s unlawful detainer statute. Utah Code Ann. § 78B-6-811(3). This
recovery is not limited to unlawful detainer-specific legal work; when multiple claims are
involved, Utah courts award fees for all claims “based on related legal theories involving a
common core of facts.” Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 35, 241

23
GPCC earned over $-- million in EBITDAR last year, and if it continues to use and occupy
Talisker’s property, is expected to earn an even greater amount next year. As discussed above,
the annual use and occupancy damages are ----------------- the amount of profits that GPCC will
earn, ranging from $---- million to $---- million. Without trebling, the costs of appeal are
dwarfed by the profits to be gained by GPCC by further delay.
34

P.3d 375. As every claim has involved interpretation of the leases and because determination of
possession has been the central premise of this litigation, Talisker’s unlawful detainer
counterclaim is inextricably intertwined with the other claims, warranting a full award of the fees
Talisker has incurred in this matter.
24
See Ex. B, Declaration of Monique Tuttle (setting forth
attorneys’ fees incurred to date).
Prejudgment Interest. Finally, the legislature determined that a defendant is not entitled
to an interest free loan for the use of monies that it owed to the plaintiff. Utah imposes
prejudgment interest at 10 percent annually. Utah Code Ann. § 15-1-1(2). Prejudgment interest
is appropriate in contractual cases like this one, “where the damage is complete and the amount
of the loss if fixed as of a particular time, and that loss can be measured by facts and figures.”
Bjork v. April Indus., Inc., 560 P.2d 315, 317 (Utah 1977). In unlawful detainer cases, Utah
courts have applied prejudgment interest to the treble damages portion of the award, not just the
base rent. Truong v. Holmes, 2009 UT App 212, at *3 (unpublished). The Leases provide that
rent is due in arrears by June 30, sixty days after the close of the prior financial year, April 30.
As a result, GPCC/GPI’s unpaid rents begin to accrue interest on June 30 after the end of the

24
For a lawsuit of this complexity and involvement, approximately ------- hours of work at an
average rate of $---- per hour is entirely reasonable. See Utah R. Prof’l Conduct 1.5. By way of
comparison, a public records search indicates that GPCC/GPI’s counsel, Weil, Gotshal &
Manges LLP, submitted a fee request at a blended rate of $639.85 for work performed in 2012.
See Third Interim Fee Application, In re AMR Corp. No. 11-15463 (Bankr. S.D.N.Y.) (Dkt.
6492) (filed Jan. 31, 2013). This fee award also necessarily includes “reasonable out-of-pocket
expenses incurred by attorneys and ordinarily charged to their clients,” which total
approximately $-------- in this case, or less than 4% of total billing. Clearone Commc’ns, Inc. v.
Chiang, No. 2:07-CV-37-TC-DN, 2009 WL 5216856, at *7 (D. Utah Dec. 30, 2009).
35

each ski season. As of the date of the hearing, GPCC/GPI’s damages will have accrued
approximately $----- million in interest.
25

* * *
GPCC/GPI have been allowed to remain on Talisker's property, in unlawful detainer, for
over three years, while making millions in profits and transferring nearly all of that money out of
the corporate entity. To allow GPCC/GPI to appeal and continue to remain on the property
without requiring a bond that represents the full amount of Talisker's damages, would provide
GPCC/GPI a gigantic windfall, as Talisker is forced to wait for one or two more years to try and
recoup those amounts, and all the while GPCC/GPI’s shareholders and affiliated entities
continue to have use of those funds for their own purposes. See Utah R. Civ. P. 62(j)(4) (“If the
court finds that the judgment debtor has … dissipated assets, the court may set the bond under
subsection (j)(1) without regard to the limits in subsection (j)(2)”).


25
As of August 27, 2014, interest will have run on the damages from the 2011-12 ski season for
nearly 2 years, 2 months, at 10% simple interest. Interest will have run on damages for the
2012-13 ski season for nearly 1 year, 2 months, and on (trebled) damages for the 2013-14 ski
season for nearly 2 months.
36

B. Calculation Of The Bond
As set forth in the table below, the total damages that have been accrued to date since the
leases expired on April 30, 2011 is $----- million.
Damages incurred as of August 27, 2014

Base rent Treble damages
26
Interest Annual total Cumulative
FY 12 $-----M - - $-----M $-----M
FY 13 $-----M - $---M $-----M $-----M
FY 14 $-----M $----M $---M $-----M $-----M
May-August $-----M $----M $---M $-----M $-----M
Plus attorneys’ fees
27
$----M
Total $-----M
As set forth in the table below, the additional damages that will accrue in the next two
years if GPCC/GPI maintain possession of the property (trebled by statute) is $------ million, for
a total of $------ million.
Prospective damages incurred during trial and appeal

Base rent Treble damages Interest
28
Annual total Cumulative
1st year $-----M $-----M $-----M $-----M $------M
2nd year $-----M $-----M $-----M $-----M $------M
Plus attorneys’ fees
29
$-----M
Total $------M

26
This column represents additional damages that result from trebling, i.e., double the base
amount. For FY 2014, trebling of damages began to run on September 2, 2013 (five days after
the service of the notice to quit), so additional damages are calculated as 2 x ($------ million x
241 days / 365 days) = $------ million.
27
These fees, which have already been incurred, are set forth in the Declaration of Monique
Tuttle, attached as Exhibit B.
28
From August 28, 2014, through August 27, 2015, GPCC/GPI will incur a full year of interest
on rent for three ski seasons (one trebled), and nearly 2 months of interest on the trebled rent for
the 2014-15 season. From August 28, 2015, through August 27, 2016, GPCC/GPI’s interest will
run on an additional full year of trebled rent.
29
This amount reflects a conservative estimate of attorneys’ fees that will be incurred going
forward until GPCC/GPI’s appeals have been exhausted.
37

CONCLUSION
For the foregoing reasons, GPCC/GPI should be required to post a bond in the amount of
$------- million as a condition for a stay pending appeal, and should be required to post the bond
within five business days of the order. While there is no rule, courts commonly allow ten
business days to post a bond under Rule 62.
30
The Unlawful Detainer Act requires the bond to
be posted no less than 72 hours after the court sets the bond amount. Utah Code Ann. § 78B-6-
808(4)(b)(v). Therefore, five business days is a greater time period than typically allowed under
the Unlawful Detainer Act. GPCC/GPI have been aware of the likely need to post a significant
bond since at least the June 19 hearing. It is important for the community to know whether
GPCC/GPI will post a bond. Five business days should be sufficient to procure the necessary
sureties or funds.

30
United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1234-35 (10th Cir. 2000)
(affirming imposition of contempt sanctions for failure to satisfy judgment or post a supersedeas
bond before the end of the ten-business-day “grace period”); see also Bad Ass Coffee Co. of
Hawaii, Inc. v. Bad Ass Coffee Ltd. P’ship, No. 2:99-CV-00150, 2000 WL 33710901, at *8 (D.
Utah Feb. 24, 2000) (conditioning preliminary injunction upon posting of bond within ten
business days).

Dated this 15th day of August 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, Talisker Land Holdings, LLC, Talisker
Land Resolution LLC, and Talisker Canyons
LeaseCo LLC

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 15th day of August, 2014, I caused a true and correct
copy of the foregoing DEFENDANTS UNITED PARK CITY MINES COMPANY AND
TALISKER LAND HOLDINGS, LLC’S MEMORANDUM ON SETTING AN
APPROPRIATE BOND to be served upon the following via the manner indicated:
Via Court’s 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

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
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.



/s/ Julie Emery

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