Powdr Corp. June 12, 2104 Motion To Stay Any Eviction Order From Park City Mountain Resort Filed in Lease Dispute With Talisker Corp., Vail Resorts

19498449
Alan L. Sullivan (3152)

Amber M. Mettler (11460)
Snell & Wilmer L.L.P.
15 West South Temple, Suite 1200
Gateway Tower West
Salt Lake City, Utah 84101-1004
Telephone: (801) 257-1900
asullivan@swlaw.com
amettler@swlaw.com

Michael D. Zimmerman (3604)
Troy L. Booher (9419)
Zimmerman J ones Booher LLC
Kearns Building, Suite 721
136 South Main Street
Salt Lake City, Utah 84101
Telephone: (801) 924-0200
mzimmerman@zjbappeals.com
tbooher@zjbappeals.com

Attorneys for Plaintiffs/Counterclaim Defendants
Greater Park City Company and Greater Properties,
Inc.
J ames W. Quinn (pro hac vice)
Bruce S. Meyer (pro hac vice)
Weil Gotshal & Manges, LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8385
james.quinn@weil.com
bruce.meyer@weil.com
IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR
SUMMIT COUNTY, STATE OF UTAH
GREATER PARK CITY COMPANY, a Utah
corporation, and GREATER PROPERTIES,
INC., a Delaware corporation,
Plaintiffs,
vs.
UNITED PARK CITY MINES
COMPANY, a Delaware corporation, and
TALISKER LAND HOLDINGS, LLC, a
Delaware limited liability company,
TALISKER LAND RESOLUTION LLC, a
Delaware limited liability company, VR
CPC HOLDINGS, INC., a Delaware
Corporation, FLERA, LLC, a Delaware
limited liability company, TALISKER
CANYONS LEASECO LLC, a Delaware
CANYONS FINANCE CO LLC, a
Delaware limited liability company, and

MEMORANDUM IN SUPPORT OF
PLAINTIFFS MOTION TO POSTPONE
OR STAY THE EFFECT AND
ENFORCEMENT OF ANY RULING THAT
MAY BE RENDERED ON DEFENDANTS
UNLAWFUL DETAINER
COUNTERCLAIM

**ORAL ARGUMENT AND EXPEDITED
CONSIDERATION REQUESTED**

Case No. 120500157
J udge Ryan Harris
**REDACTED**
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J OHN DOE CORPORATIONS 1
THROUGH 10,
Defendants.
UNITED PARK CITY MINES COMPANY,
a Delaware corporation, and TALISKER
LAND HOLDINGS, LLC, a Delaware limited
liability company,

Counterclaim Plaintiffs,

vs.


Counterclaim Defendants.

Plaintiffs/Counterclaim Defendants Greater Park City Company (GPCC) and Greater
Properties, Inc. (GPI) (collectively, Plaintiffs), by and through their counsel of record,
hereby submit this Memorandum in Support of their Motion to Postpone or Stay the Effect and
Enforcement of Any Ruling that May Be Rendered on Defendants Unlawful Defendants
Counterclaim.
I. SUMMARY
On J une 19, 2014, this Court will hear argument on Defendants motion for partial
summary judgment on their claim for unlawful detainer. Defendants United Park City Mines
Companys (UPCM) and Talisker Land Holdings, LLCs (TLH) (collectively, Talisker
or Defendants) have advised Plaintiffs that, if the Court grants the motion, they will seek
immediate entry of an order of restitution. They have also advised Plaintiffs that, if the order of
restitution is entered, they will seek to enforce it by requiring Park City Mountain Resort
(PCMR) to vacate the Talisker leasehold within 60 days.
In the present motion to stay, Plaintiffs respectfully ask the Court to postpone any
eviction and to adopt a measured and logical approach to the resolution of the remaining issues
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in this case, consistent with the terms of the Utah unlawful detainer statute, Utah Code Ann.
78B-6-801, et seq., and to preserve Plaintiffs appellate rights. Specifically, Plaintiffs ask for
the following rulings:
Plaintiffs ask the Court to postpone the issuance of any order of restitution until
Defendants claims for rent and damages are decided by the Court, as
contemplated by Utah Code Ann. 78B-6-811(1)(b).
Since Plaintiffs intend to appeal the Courts rulings, and since Plaintiffs will
seek an order staying any eviction during the appeal, Plaintiffs believe that a
hearing on the manner of enforcement of any order of restitution should be
postponed, under Utah Code Ann. 78B-6-810(5) and/or -812(1)(c). Plaintiffs
therefore ask the Court to postpone the hearing on the manner of enforcement
until the conclusion of an appeal from the unlawful detainer judgment.
Regardless of the sequence in which the Court rules on the order of restitution,
rent and damages, and in the event that an order of restitution is issued, Plaintiffs
ask the Court to stay its execution and enforcement until Plaintiffs have had the
opportunity to file an appeal and apply for a stay under Rule 62, Utah Rules of
Civil Procedure.
As suggested above, Plaintiffs intend to appeal (1) any ruling rendered against them on
the unlawful detainer counterclaim, (2) related rulings in the Courts Memorandum Decision and
Order (May 21, 2014), and (3) the ruling in the Courts Memorandum Decision and Order
(February 20, 2014) denying Plaintiffs motion to dismiss Defendants unlawful detainer
counterclaim. The issues decided in the Courts May 21, 2014 Order and February 20, 2014
Order overlap factually with the issues raised in Defendants unlawful detainer counterclaim.
Under Rule 54(b), Utah Rules of Civil Procedure, therefore, the earliest time at which Plaintiff
may appeal will be following the Courts entry of partial summary judgment on Defendants
unlawful detainer counterclaim, and it is uncertain whether an appeal is appropriate without a
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decision on Defendnts request for rents, damages, and attorneys fees. The concern motivating
the present motion for stay is that, assuming the Court enters an order of restitution and does not
postpone its execution, Defendants will attempt to evict PCMR before Plaintiffs can post a bond
and obtain a stay pursuant to Rule 62.
As set forth in Part A of the Argument below, the Courts ultimate judgment on the
unlawful detainer claim must include its determination on Defendants entitlement, if any, to
rent, damages and attorneys fees. See id. 78B-6-11(2) & (3). These issues, as to which the
parties are entitled to a jury trial, are the same issues that must be decided before the Court can
set the amount of a supersedeas bond under Rule 62(j). For these reasons, the Court should
exercise its authority to manage the case by postponing issuance of an order of restitution, or else
staying enforcement of the order of restitution, until all issues required to be included in the
judgment and necessary to the determination of a bond amount have been decided.
As set forth in Part B of the Argument, the hearing on the manner of enforcement of
the order of restitution will be hotly contested. Although the hearing will be essential before any
eviction takes place, it should be postponed until the conclusion of an appeal on any unlawful
detainer judgment. It would be a waste of time and resources for the Court and the parties to
adjudicate what assets may be removed from the leasehold and how long it will take for PCMR
to vacate the premises, before the parties have a final determination of the matter on appeal.
Regardless of the sequence in which the issues of possession, rent, and damages are
adjudicated, the Court should stay Defendants execution on any order of restitution until
Plaintiffs have had the opportunity to appeal and obtain a stay. As shown in Part C of the
Argument, execution on any judgment of unlawful detainer should be stayed because: (1) a grave
injustice will result to Plaintiffs, and serious economic harm will result to innocent third parties
and the public, if execution is not stayed; (2) Defendants will not suffer any harm if the order of
restitution is stayed; and (3) Plaintiffs are entitled to a stay pending appeal under Rule 62, and its
right to seek a stay should be preserved.
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II. FACTS
A. Park City Mountain Resort and the Leases
1. GPCC owns and operates the Resort. (See, e.g., 5/21/2014 Mem. Decision and
Order at 1.)
2. A significant portion of the Resorts skiable terrain is operated on land leased
through two lease agreements (the Resort Area Lease and the Crescent Ridge Lease,
collectively referred to as Leases). (Id. at 3.) The Leases were originally entered into
between GPCC, as tenant, and UPCM, as landlord, but in 1975, GPCC assigned the Leases to
GPI, which in turn, subleased the property back to GPCC. In 2004, UPCM assigned its rights
under the Leases to TLH. (Id. at 3-4.) The Leases cover approximately 3,000 acres of land.
(See 2/6/2014 Declaration of J enni Smith Decl. at 4.)
3. Since the early 1970s, GPCC has operated the Resort on the Leased Premises and
other lands. (5/21/2014 Mem. Decision and Order at 2.) GPCC has built and maintained on
the Leased Premises ski lifts, ski runs, day lodges, restaurants and other winter and summer
recreational and resort facilities associated with the operation of a recreational resort. (2/6/2014
Decl. of J enni Smith at 7.) In doing so, GPCC has invested over $100 million on the Resort.
(See id. at 8.)
4. The Leases require that all buildings, structures, facilities and improvements
situated upon and which are affixed to the soil of the Leased Premises to become the property
of the Lessor at the expiration or termination of the Leases. Plaintiffs are entitled to retain all
machinery, equipment, personal property and supplies not affixed to the soil. (See Resort Area
Lease at 19, Ex. 1 to 2/7/2014 Decl. of Michael Zimmerman (Zimmerman Decl.); Crescent
Ridge Lease at 20, Ex. 2 to Zimmerman Decl.)
5. Although much of the Resorts ski terrain is covered by the Leases, the Resorts
base area, parking facilities, and the Town Lift base are owned by GPCC and/or Powdr Corp.
The terrain immediately uphill from the base (approximately 202 acres) is owned by non-party
Park Properties, Inc. (PPI) and leased by GPCC. (See 2/6/2014 Declaration of J enni Smith
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Decl. at 6.) GPCC also owns outright the water, snowmaking and sewer infrastructure
necessary for the operation of the Resort. (Id.)
6. Currently, the Resort employs approximately 1,100 full and part-time employees
and generates hundreds of millions of dollars in revenue for businesses and individuals in Park
City and Summit County by drawing approximately % of the total skier days in Summit
County and % of out-of-state skier days for all of Utahs winter resorts. (Id. at 3; see also
6/12/2014 Decl. of Greg Adams (Adams Decl.) at 6, attached hereto as Exhibit A.)
B. Relevant Procedural History
7. Plaintiffs initiated this litigation on March 9, 2012. (See Compl.)
8. The Court ruled on Defendants motion to dismiss and Plaintiffs cross-motion for
partial summary judgment in a Memorandum Decision and Order issued on November 20, 2012.
Thereafter, the case proceeded through fact discovery. The Court stayed expert discovery
pending adjudication of the dispositive motions on the remaining portions of Plaintiffs First
Cause of Action for Declaratory Relief. (See 9/26/2013 Scheduling Order (Once the dispositive
motions are adjudicated, the Court will determine whether the trial should be bifurcated or how
the case should proceed from that point.).)
C. Vail Transaction
9. On or about May 29, 2013, Talisker and Vail Resorts, Inc. (through Defendant
VR CPC Holdings, Inc.) consummated a transaction in a series of agreements, pursuant to which
VR CPC Holdings leased the Canyons Resort property for a fifty-year term, with six automatic
fifty-year renewal periods, for a total term of 350 years (the Vail Transaction). (See 5/21/2014
Mem. Decision and Order at 97.)
10. As part of the Vail Transaction, the parties created a new entity, known as
Talisker Land Resolution LLC, in order to afford Vail a means to exercise control over this
litigation. (Id. at 98.) Talisker Land Resolution acquired 100% of the equity in, and is the sole
member of, TLH. (Id.)
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11. In addition, as part of the Vail Transaction, the parties agreed that the Leased
Premises may be added to Vails lease if Talisker prevails in this litigation, although the amount
of rent paid by Vail to Talisker a fixed base rent of $25 million per year will not change, with
the exception that amounts paid by Vail tied to the resorts EBITDA may change to the extent
Vail is able to operate PCMR. (See, e.g., 4/8/2014 Decl. of J ack Bistricer at 6 (The May 2013
deal with Vail was structured so that the Talisker-affiliated entities involved in the deal would
benefit financially from the potential upside that I believed could be achieved through the
arrangement with Vail. Specifically, in addition to the $25 million per year that VR CPC
Holdings pays as fixed base rent, VR CPC Holdings is also obligated to pay participating rent
of 42% of the amount by which the EBITDA from [Canyons Resort and PCMR] exceeds a
certain threshold amount.).)
D. Unlawful Detainer Claim
12. On August 28, 2013, TLH, by and through its sole member, Talisker Land
Resolution, served GPCC and GPI with a Five Day Notice to Quit pursuant to Utah Code Ann.
78B-6-802, et seq. (5/21/2014 Mem. Decision and Order at 84.)
13. On October 28, 2013, TLH and UPCM filed counterclaims against GPCC and
GPI, including a counterclaim for unlawful detainer. On March 14, 2014, for the first time,
Talisker took action to obtain immediate occupancy of the Leased Premises by filing a motion
for partial summary judgment on the unlawful detainer counterclaim and an order of restitution.
(See Talisker Counterclaim at 66-75; 3/14/2014 Talisker Mem.)
14. In addition to seeking restitution of the Leased Premises, Talisker claims it has
been damaged by Plaintiffs continued use of the Leased Premises and the buildings, structures,
facilities, and improvements thereon and the alleged waste of the buildings, structures,
facilities, and improvements on the Leased Premises, whose value has been depleted by GPCC
and GPIs continued use. Talisker further claims it is entitled to the reasonable value of use of
the Leased Premises and the buildings, structures, facilities, and improvements thereon, from
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five days after service of the Notice to Quit to the present until the time [GPCC and GPI] vacate
the premises. (See Talisker Counterclaim at 73-74.)
E. Facts Relating to the Threatened Eviction of PCMR
15. Currently, GPCC owns and operates 16 lifts on the Resort. (See 6/11/2014 Decl.
of J enni Smith at 3, attached as Exhibit B.)
16. With the exception of the J upiter Lift, the Thaynes Lift, and the Motherlode Lift,
all of the ski lifts on the Resort are constructed so that the ski lift towers are bolted to concrete
footings but are not otherwise affixed to the land. (See 4/1/2014 Decl. of J enni Smith, at 3.)
17. Should GPCC be required to vacate the Leased Premises, GPCC intends to
remove:
a. all removable snowmaking equipment, including the compressors, pumps,
and fixed snow guns (collectively, the Snowmaking Equipment);
b. all equipment and furniture housed in the Summit House Restaurant, the
Mid Mountain Restaurant, and the Snow Hut Restaurant (collectively, the
Restaurant Equipment);
c. all equipment, parts, tools, and vehicles stored in the King Shop
Maintenance Building (collectively, the Mechanical Equipment);
d. all equipment located in the Summit Patrol and Demo Center buildings
and the Yurt (collectively, the Patrol Equipment);
e. the motors, gearboxes, drives, chairs, cables, assemblies, and terminals of
all lifts plus the towers for the Town Lift, the Crescent Lift, the King Con
Lift, the Silverlode Lift, the Bonanza Lift, the McConkeys Lift, the
Pioneer Lift, the Eaglet Lift, and the Silver Star Lift (collectively, the Lift
Equipment).
(See id. at 4; see also 6/11/2014 Decl. of J enni Smith at 4.)
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18. GPCC estimates that the removal of the foregoing equipment described in
paragraph 17 will require a minimum of 33 weeks and cost in excess of $4 million. (See
6/11/2014 Decl. of J enni Smith at 6-8.) Some of this work can only be done during the
construction season, which runs from approximately J une 1 through October 31. (See 6/11/2014
Decl. of J enni Smith at 10.) Work that must be done outside the construction season will take
substantially more time and cost significantly more. (Id.)
19. Even if GPCC were able to vacate the Leased Premises during a single
construction season, there would be insufficient time for Vail or any other operator to install the
equipment necessary to keep PCMR open during the following winter season, even assuming
Vail could overcome such other obstacles to operation as lack of access to the base area, lack of
parking, and lack of water for snowmaking.
20. For periods in which GPCC is not permitted to occupy the Leased Premises and is
not involved in the work necessary to remove or reinstall its equipment, GPCC intends to
continue to operate in the summer season and to operate on a substantially reduced scale during
the winter. (See 6/11/2014 Decl. of J enni Smith at 14.)
a. PCMRs summer operations would include an alpine slide, an alpine
coaster, a zip line, and mountain biking and hiking on the property owned
by PPI.
b. PCMRs reduced winter operations would include a terrain park, ski
school, and limited skiing on the skiable terrain owned by PPI and
accessible via the First Time Lift and the modified Payday, Eagle, and
Three Kings Lifts. (Id.) GPCC also has plans to build Woodward Park
City, an action sports mountain training center and camp, at the upper
portion of PCMRs First Time parking lot, but GPCC does not anticipate
that the facility will be fully operational until 2017.
(Id.)
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21. In order to continue operating at this level, in addition to removing the property
identified in paragraph 17, above, it would be necessary for GPCC to (1) shorten, realign, or
relocate the Payday Lift, the Three Kings Lift, and the Eagle Lift, (2) reconfigure its
snowmaking pipe and guns, (3) relocate the top station of the zip line and two magic carpets, and
(4) reconfigure the alpine coaster. (See 6/11//2014 Decl. of J enni Smith at 5.) Portions of the
modified ski lifts that are currently located on the Leased Premises and not necessary to the
resulting modified lifts would be removed. (Id.)
22. Should GPCC subsequently be permitted to reoccupy the Leased Premises, it
estimates that it would take at least two construction seasons to reinstall the previously removed
equipment and undo any lift modifications. (See 6/11/2014 Decl. of J enni Smith at 13.) It is
difficult to estimate, but GPCC believes that this would cost in excess of $7 million. (Id.)
23. During any period in which GPCC is not permitted to occupy the Leased
Premises, GPCC will suffer an estimated $ in lost profits as a result of an eviction.
(See 6/12/2014 Decl. of Gil Miller (Miller Decl.) at 25, attached as Exhibit C.)
24. More importantly, closure of the Resort will have a catastrophic impact on the
local economy. GPCCs expert estimates that, should GPCC be required to vacate the Leased
Premises and the Resort is closed for one or more winter seasons, thousands of jobs will be lost
or threatened, primarily in Summit County, and the hundreds of millions of dollars that PCMR
contributes to the Utah tourism economy will also be lost or threatened. (See Adams Decl. at
6-7, 20-29, attached as Exhibit A.) For example, if only 25% of the out-of-state skier days at
PCMR were lost to another destination, such as Lake Tahoe or Colorado, because of the
downsizing or closure of PCMR, this would result in a loss of approximately $100 million in
economic activity per year, and approximately 1,100 jobs. (Id. at 28.)
F. Remaining Claims and Issues
25. After the Courts May 21, 2014 Memorandum Decision and Order, the following
claims remain to be decided: (a) Taliskers counterclaim for rent, in which it seeks unspecified
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amounts for Plaintiffs use and occupancy of the Leased Premises since April 30, 2011;
(b) Taliskers counterclaim for unlawful detainer damages (also in an unspecified amount),
including compensation for waste of the buildings, structures, facilities, and improvements on
the Leased Premises; and (c) Taliskers counterclaim for unjust enrichment, seeking unspecified
amounts related to Plaintiffs allegedly unjustly obtained benefits.
1
(See Counterclaims at
61-81.)
26. In disclosures and discovery responses relating to the foregoing damages claims,
Talisker has argued: (a) that it is entitled to an unspecified amount for the use of the Leased
Premises for the period from May 1, 2011 to April 30, 2012; (b) that it is entitled to at least $7.7
million for the period from May 1, 2012 to April 30, 2013; and (c) that it is entitled to treble
damages for the reasonable value of the use of the Leased Premises after service of the Notice to
Quit August 28, 2013. (See Taliskers Suppl Initial Disclosures at p. 5-6.) According to
Talisker, these amounts are to be the subject of future discovery, expert opinion, and trial. (Id.)
Talisker further claims that any waste to the Leased Premises and the buildings, structures,
facilities, and improvements thereon is currently unknown but will be the subject of future
discovery, including perhaps expert evidence and testimony. (Id.)
27. In addition, Plaintiffs have a claim remaining for negligent nondisclosure which
will be tried to a jury. (See 5/21/2014 Memorandum Decision and Order at 62.) Plaintiffs seek
$7 million in damages. (See, e.g., Second Am. Compl. at 47-56.)
28. Before the Court may adjudicate the remaining issues and claims, the parties will
require additional fact and expert discovery. The parties will try the remaining issues to a jury.

1
Originally, Talisker sought disgorgement of the profits earned by GPCC from the operation of
PCMR on the Leased Premises. The Court dismissed this portion of Taliskers counterclaim for
unjust enrichment. (See 2/20/2014 Memorandum Decision and Order at 20-23.)
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III. ARGUMENT
A. Issuance of an Order of Restitution Should Be Postponed Pending the Full
Adjudication of Taliskers Unlawful Detainer Counterclaim.
Under section 78B-6-811, a judgment of unlawful detainer consists of four components:
(1) the order of restitution, (2) an award of damages resulting from the unlawful detainer, (3) an
award of rent due and owing, and (4) an award of any attorneys fees recoverable under the
statute. Since the judgment needs to include all of these elements, no order of restitution should
be entered until the damages, rent and attorney fees issues are adjudicated. There are some
obvious practical reasons to postpone the issuance of the order of restitution. As shown below,
entry of the order of restitution may enable Plaintiffs to seek a Rule 54(b) certification of all
issues relating to the right to possession of the Leased Premises and to seek a stay under Rule
62(h), which governs stays of judgment on multiple claims, but Plaintiffs believe this is unlikely.
If, however, Rule 54(b) certification is granted and security is required (upon which Defendants
will no doubt insist), under Rule 62(j), the Court will be required to set an appropriate amount
for the bond because of the damages awarded to the judgment creditor. But if the Court has not
yet adjudicated the amount of rent and damages, there will be no judgment creditor, and it is
unclear how the Court will adjudicate the amount of the bond.
Nevertheless, if the Court concludes that it should order restitution before adjudicating
rent and damages issues, Plaintiffs respectfully request that the Court postpone Defendants
execution on the order pending resolution of these issues.
2
Postponement of any eviction will be
essential to preserve Plaintiffs right to appeal. Utah trial courts have clear authority to delay

2
Plaintiffs have already requested a hearing on the manner of enforcement. (See 2/4/2014
Oppn Br. at 14.) If a defendant requests a hearing as to the manner of enforcement of an order
of restitution, Utah Code Ann. 78B-6-812(2)(b) permits the Court to stay enforcement of the
restitution order if 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 the court orders that the restitution order
be stayed. Subsection 78B-6-808(4)(b)(vi) provides that [t]he 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.
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entry of or execution on orders to achieve efficiency and fairness. See, e.g., Mower v. Simpson,
2012 UT App 149, 13, 278 P.3d 1076 (noting that the district court retains the authority and
discretion to take reasonable steps to make this case more manageable for everyone involved);
State v. Bergeson, 2010 UT App 281, 7, 241 P.3d 777 (It is clear that the district court
exercises the discretion to manage its docket and set firm deadlines for motion practice.); Welsh
v. Hosp. Corp. of Utah, 2010 UT App 171, 9, 235 P.3d 791 (Trial courts have broad discretion
in managing the cases assigned to their courts. (quotation omitted)); see also Utah Code Ann.
78B-6-810(5) (A court adjudicating matters under this chapter may make other orders as are
appropriate and proper.). The Court should exercise its authority in this case so that it may
adjudicate questions relating to Defendants alleged damages in an orderly fashion, and so that
Plaintiffs appellate rights will be protected.
We respectfully submit that the Court should postpone rendering any order of restitution
until the unlawful detainer claim has been fully adjudicated. Alternatively, we ask the Court to
enter a stay in terms similar to those in the proposed order attached as Exhibit D. A
postponement will allow time for the adjudication Defendants claims for rent and damages
issues that must be decided before the Court can determine the amount of security for Plaintiffs
to post as a predicate for a stay pending appeal under Rule 62. A postponement will also allow
Plaintiffs to remain on the Leased Premises and continue to operate PCMR while they pursue an
appeal, either under Rule 54(b) or as of right under Utah Rule of Appellate Procedure 4.
B. The Hearing on the Manner of Enforcement of the Order of Restitution
Should Be Postponed Until the Conclusion of the Appeal on the Unlawful
Detainer Counterclaim.
Section 78B-6-812(1) of the unlawful detainer statute requires that any order of
restitution include (1) a determination of the period . . . appropriate under the circumstances to
allow the tenant to vacate the leasehold, and (2) a statement advising the tenant of its right to a
hearing to contest the manner of [the order of restitutions] enforcement. In this case, the
parties disagree as to the appropriate period that should be allowed PCMR to vacate the Leased
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Premises and as to the manner in which an order of restitution should be enforced. Plaintiffs
expect to prove that, because of the nature of the assets on the leasehold, they will need a period
of months to vacate the property. They expect to prove as well that they are entitled under the
Leases to remove equipment that is not affixed to the soil. Plaintiffs description of the work that
will be necessary for PCMR to vacate the Leased Premises, together with their estimate of the
time and expense that will be involved, is set forth in the Declaration of J enni Smith, which
accompanies this memorandum. We anticipate that Defendants will contest both the period that
should be allowed to vacate the premises and the categories of assets that may be removed.
Plaintiffs respectfully submit that there is no need for the Court to resolve these issues at
the present time. The Courts determination of the manner of eviction should be postponed until
it is clear that there will be an eviction. The hearing required by section 78B-6-812(1) should be
postponed until Plaintiffs appeal on the substantive issues has been concluded.
C. Defendants Should Be Prevented from Evicting PCMR Until Plaintiffs Have
Had the Opportunity to File an Appeal and Obtain a Stay.
As Plaintiffs have made clear from the outset, they intend to exhaust all available means
to retain possession of the Leased Premises, including appeal. Plaintiffs cannot do so, however,
until some or all of the remaining claims are resolved, including, in particular, any claims based
on the same operative facts as the claims or issues that have already been resolved by the Court.
See Kennecott Corp. v. Utah State Tax Commn, 814 P.2d 1099, 1103-05 (Utah 1991) (Where
the facts are sufficiently similar to constitute res judicata on the remaining issues, 54(b)
certification is generally precluded.); see also Cent. Utah Water Conservancy Dist. v. Upper E.
Union Irr. Co., 2013 UT 67, 39-42, 321 P.3d 1113 (discussing Rule 54(b) certification). As a
consequence, all issues relating to Taliskers counterclaim for recovery of possession of the
Leased Premises must be resolved before Plaintiffs may seek a certification under Rule 54 (b).
See Bichler v. DEI Sys., Inc., 2009 UT 63, 32, 220 P.3d 1203 (after district court had granted
summary judgment on the issue of possession, outstanding rent, interest, late charges, and
attorneys fees, the Court held that [b]efore directing an entry of final judgment under rule 54(b)
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on the issue of possession, the court must resolve all claims relating to possession.); see also
DFI Prop. LLC v. GR 2 Enter. LLC, 2010 UT 61, 19, 242 P.3d 781 (dismissing appeal for lack
of jurisdiction because the district courts judgment in an unlawful detainer action did not
establish the amount of the awards of attorney fees and treble damages); Phillips v. Biers, Case
No. 20100743-CA, 2010 WL 5027052, at *1 (Utah Ct. App. Dec. 9, 2010) (unpublished) (The
order of restitution is not a final, appealable judgment because it does not resolve all issues
raised in the unlawful detainer case. Specifically, the order of restitution failed to resolve the
Phillipses' claims for monetary damages. This includes the Phillipses request for attorney
fees.).
3
In other words, the earliest Plaintiffs may seek Rule 54(b) certification is upon this
Courts ruling on Taliskers pending motion for partial summary judgment, but it is uncertain
whether such certification will or should be granted when Taliskers claims for rent, damages,
and attorneys remain outstanding.
Plaintiffs should not be deprived of their appellate rights based on the procedural
peculiarities of this case. They should not be forced to face an eviction order that, in the absence
of a stay, may be enforceable immediately especially if Plaintiffs are unable to appeal and
thereby seek a stay pursuant to Rule 62(d) or (h). See Utah R. Civ. P. 62(d) (When an appeal is
taken, the appellant by giving a supersedeas bond may obtain a stay, unless such a stay is
otherwise prohibited by law or these rules. The bond may be given at or after the time of filing
the notice of appeal. The stay is effective when the supersedeas bond is approved by the
court.), (h) (When a court has ordered a final judgment on some but not all of the claims
presented in the action under the conditions stated in Rule 54(b), the court may stay enforcement
of that judgment until the entering of a subsequent judgment or judgments and may prescribe
such conditions as are necessary to secure the benefit thereof to the party in whose favor the
judgment is entered.).

3
Copies of all unpublished cases cited herein are attached as Exhibit E.
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For the reasons set forth below, Plaintiffs respectfully request that the Court issue an
order temporarily staying Defendants attempts to execute on any order of restitution until
Plaintiffs have the opportunity to file an appeal and obtain a stay under Rule 62.
1. Injustice Will Result if Talisker is Permitted to Enforce or Execute on
Its Judgment, Including an Order of Restitution.
The district court should exercise its discretion to preemptively stay enforcement of any
judgment, including an order of restitution, in order to prevent injustice. See Utah R. Civ. P.
62(a); Taylor Natl, Inc. v. J ensen Bros. Constr. Co., 641 P.2d 150, 154 (Utah 1982) (court, in
its discretion, may temporarily stay execution in order to prevent injustice, but it may not negate
its own judgment by indefinitely staying execution thereon); Palmquist v. Palmquist, 6 Utah 2d
294, 296, 312 P.2d 779, 780 (1957) (Equitable relief from the enforcement of a judgment is not
granted on the ground that the parties have cross demands, merely, but rather that some injustice
would result were execution not stayed.); see also 30 Am. J ur. 2d Executions, Etc. 301 (A
stay of execution is generally granted to satisfy the ends of justice or prevent injustice.).
If Talisker is allowed to execute on an order of restitution before Plaintiffs are able to
obtain a stay pending their appeal, the result will be an injustice to the Plaintiffs and unnecessary
harm to the many third parties who depend on PCMRs continuing operation for their economic
survival. Absent a stay, Plaintiffs would be forced to vacate the Leased Premises, which will
result in the immediate closure of PCMR. The closure of PCMR even for a single winter
season will destroy hundreds of jobs and will drive dozens of shops and restaurants out of
business. The economic impact on the people of Park City, Summit County, and the State of
Utah will be devastating. (See Adams Decl. at 23-29, Exhibit A.) GPCC itself will be forced
to incur costs in excess of $4 million merely to remove its equipment from the Leases Premises
a task that may ultimately be determined to have been unnecessary. (See 6/11/2014 Decl. of
J enni Smith at 6-7, Exhibit B.) An eviction will cause GPCC lost profits of approximately
$ . (See Miller Decl. at 25, Exhibit C.)
19498449

17

Plaintiffs have the unquestioned right to appeal. A corollary to this right is the right to
stay any eviction pending resolution of Plaintiffs appeal. Otherwise, Plaintiffs right to appeal
will be rendered largely meaningless. The Court should, therefore, stay Taliskers execution on
a judgment on the unlawful detainer claim, including an order of restitution, to allow Plaintiffs to
obtain and post a supersedeas bond sufficient to stay all proceedings pending appeal.
4
See Utah
R. Civ. P. 62(a), (d), (h) & (j).
2. No Party Will Be Harmed by Staying Execution of an Order of
Restitution.
The only party that could conceivably claim to be a judgment creditor in this case is
Talisker. Of all the Defendants, only TLH and UPCM have asserted counterclaims for damages,
yet none of these counterclaims has been decided. As a result, at present, there is no judgment
creditor whose interests would need protect[ion] during any stay. Cf. Utah R. Civ. P. 62(j)(1).
Moreover, as the result of its transaction with Vail last year, Talisker has already been paid more
than fair market rent for the Leased Premises since May 2013. In that transaction, Vail agreed to
pay Talisker rent that, according to Taliskers chairman, far exceeded amounts it anticipated it
could obtain from PCMR. (See 4/8/2014 Decl. of J ack Bistricer at 4 (the highest value for
the land underlying Canyons Resort and PCMR would be achieved by linking the two resorts
together and, further, that such linkage would be more likely to occur if the resorts were
operated under unified management), 6 (the Vail Transaction is a much better deal for the
Talisker-affiliated companies involved in the transaction than any deal that could have been
achieved with PCMR management).) Presumably Talisker will continue to receive such
payments during the remainder of this case, including through any appeal.
In short, since Taliskers claims for rent and damages have not yet been the subject of
discovery or adjudication, it is impossible at this stage to identify any harm to Talisker from a

4
This is particularly true since, among the issues Plaintiffs intend to appeal, is the Courts denial
of Plaintiffs motion to dismiss Taliskers counterclaim for unlawful detainer. (See 2/20/2014
Mem. Decision and Order.)
19498449

18

stay pending appeal. And since Vail is already committed to pay Talisker a premium for the
PCMR Leasehold, it is difficult to see how Talisker could claim any loss at all. Talisker not only
lacks a money judgment against Plaintiffs: it is clear that the landlord is not being deprived of
rent for the property. Cf. Utah Code Ann. 78B-6-812(b), -808(4)(b) (possession bond
includes costs of any actual damages).
As explained above, Plaintiffs intend to appeal at the first opportunity afforded by the
rules, either through certification pursuant to Utah Rule of Civil Procedure 54(b) or an appeal as
of right under Utah Rule of Appellate Procedure 4. Plaintiffs will post a supersedeas bond
adequate to protect any judgment creditor. Upon approval of the bond by the Court, Plaintiffs
will be entitled to a stay of all proceedings pending appeal. See Utah R. Civ. P. 62(d), (h); see
also 30 Am. J ur. 2d Executions, Etc. 302 (temporary stay may be appropriate because once an
appeal is taken for a money judgment, a stay of execution of the judgment generally must be
conditioned upon the filing of an appropriate bond).
5

3. Should the Court Require it, Plaintiffs Will Post Security.
Because, as noted above, Taliskers claims for rent, attorneys fees, and unlawful detainer
damages (as well as Plaintiffs claim for negligent nondisclosure) have not yet been decided,
Plaintiffs do not believe it is necessary or appropriate to require Plaintiffs to post any security

5
Courts in Utah and elsewhere routinely stay orders of restitution pending appeal of unlawful
detainer claims. See, e.g., Fed. Natl Mortg. Assn v. Sundquist, 2013 UT 45, 7, 311 P.3d 1004
(The order of restitution was stayed pending appeal. We have jurisdiction under Utah Code
section 78A3102(3).); Coleman v. Thomas, 2000 UT 53, 4 P.3d 783, 785 (The trial court
denied the motion for a new trial but stayed execution of the restitution order pending an appeal
of the courts decision.); see also Halajian v. Deutsche Bank Nat. Trust Co., 1:12-CV-00814
AWI, 2013 WL 593671, at *1 (E.D. Cal. Feb. 14, 2013) (unpublished) (after granting motion for
summary judgment on an the unlawful detainer claim, the trial court stayed the writ of execution
and on appeal, the appellate court granted the motion to stay enforcement of the judgment
pending appeal); Bowshier v. Bowshier, Case No. 2013-CA-33, 2013 WL 5314565, at *8 (Ohio
Ct. App. Sept. 20, 2013) (unpublished) (When this cause of action was first on appeal to this
court, until we dismissed that appeal, we stayed the execution of the restitution order, subject to
the condition that Teddy deposit $650 per month either into an escrow account controlled by
counsel for both parties, jointly, or with the clerk of the municipal court. It appears that the latter
option was chosen.).
19498449

19

sufficient to cover the period from entry of the order of restitution until entry of judgment.
Should the Court disagree, Plaintiffs will post security in any amount required by the Court
which Plaintiffs are able to afford. Cf. Utah Code Ann. 78B-6-812(b), -808(4)(b). And, of
course, upon entry of an appealable judgment, Plaintiffs will obtain and file a supersedeas bond
sufficient to stay execution pending resolution of the appeal. See Utah R. Civ. P. 62.
IV. CONCLUSION
For the reasons set forth herein, Plaintiffs ask the Court to (1) delay issuance or stay
execution of any order of restitution pending adjudication of Taliskers counterclaim for
unlawful detainer and (2) preemptively stay execution of any appealable judgment, including
any order of restitution, pending entry of a supersedeas bond that, upon approval by the Court,
will stay all proceedings pending appeal.
DATED this 12th day of J une, 2014.
/s/ Amber M. Mettler
Alan L. Sullivan
Amber M. Mettler
Zimmerman Jones Booher LLC
Michael D. Zimmerman
Troy L. Booher
J ames W. Quinn
Bruce S. Meyer
Attorneys for Plaintiffs/Counterclaim
Defendants
19498449

20

CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of J une, 2014, I caused the foregoing
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO POSTPONE OR
STAY THE EFFECT AND ENFORCEMENT OF ANY RULING THAT MAY BE
RENDERED ON DEFENDANTS UNLAWFUL DETAINER COUNTERCLAIM to be
served via the Courts electronic filing system and/or U.S. mail upon the following:
J ohn R. Lund
Kara L. Pettit
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Post Office Box 4500
(Via electronic filing)

Howard M. Shapiro (pro hac vice pending)
J onathan E. Paikin (pro hac vice pending)
Christopher E. Babbit (pro hac vice pending)
WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
(Via U.S. mail)

Attorneys for Defendants United Park City Mines Company;
Talisker Land Holdings, LLC; Talisker Land Resolution LLC;
and Talisker Canyons Leaseco LLC

J onathan A. Dibble
RAY QUINNEY & NEBEKER P.C.
36 South State Street, Suite 1400
Salt Lake City, UT 84111

19498449

21

Robert C. Blume (pro hac vice)
Ryan T. Bergsieker (pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1801 California Street
Denver, CO 80202-2642
(Via U.S. mail)

Attorneys for Defendant VR CPC Holdings, Inc.

Mark J ames
Hatch, J ames & Dodge, P.C.
10 West Broadway, Suite 400

Attorneys for Talisker Canyons Finance Co LLC and Flera, LLC

Michael Gill
Daniel Storino
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
(Via U.S. mail)

Of Counsel for Talisker Canyons Finance Co LLC and Flera, LLC

/s/ Patricia Haslam

EXHIBIT A

1


Plaintiffs,
vs.
UNITED PARK CITY MINES COMPANY, a
Delaware corporation, and TALISKER LAND
HOLDINGS, LLC, a Delaware limited liability
company, TALISKER LAND RESOLUTION
LLC, a Delaware limited liability company,
VR CPC HOLDINGS, INC., a Delaware
Corporation, FLERA, LLC, a Delaware limited
liability company, TALISKER CANYONS
LEASECO LLC, a Delaware limited liability
company, TALISKER CANYONS FINANCE
CO LLC, a Delaware limited liability
company, and J OHN DOE CORPORATIONS
1 THROUGH 10,
Defendants.
DECLARATION OF
GREGORY D. ADAMS

Case No. 120500157

J udge Ryan Harris
company,
vs.

I, Gregory D. Adams, declare as follows:
1. I am over the age of 18 years, a resident of the State of Utah, and am fully competent in
all respects to testify regarding the matters set forth herein.

2

2. I am a Vice President at Charles River Associates (CRA) in Salt Lake City, Utah, and
an Adjunct Assistant Professor in the Department of Economics at the University of
Utah. I hold a Bachelors Degree in Economics from Wake Forest University, a Masters
Degree in Agricultural and Resource Economics from the University of Main-Orono, and
a Doctorate Degree in Agricultural and Natural Resources Economics from the
University of California at Berkley.
3. I have over 20 years of experience in applied microeconomic analysis and consulting, and
I have served as an expert in a wide range of areas, including antitrust; lost profits;
intellectual property; environmental and natural resources; and the agricultural,
agribusiness, and food industries. I have testified as an economic expert in 4 trials as
well as several arbitration proceedings, and via deposition in over 15 instances. A copy
of my C.V. is attached to this Declaration as Exhibit 1. A list of my past testimony is
attached as Exhibit 2.
4. I have been asked by Plaintiff, Greater Park City Company (GPCC) d/b/a Park City
Mountain Resort (PCMR), to analyze the economic impact on the economies of Park
City and Summit Country Utah if PCMR were prevented from operating on the disputed
resort lands.
5. I have reviewed certain information provided by GPCC and PCMR, including the
materials referenced herein that contain data on the revenues, employment, and tax
payments by PCMR, and have had discussions with PCMR management. I have also
been provided the results of PCMR surveys of resort visitors, surveys of the Utah and
national ski industry, and I have reviewed publicly available data on the economy of
Summit County, including employment and tax revenues, as well publicly available
economic research on the impact of the ski industry to the economy of Utah. A list of all
materials that I have considered in this assignment is attached to this Declaration as
Exhibit 3.

3

Summary of Findings
6. The economic importance of PCMR to Park City and Summit County is substantial.
PCMR is easily the most popular ski resort in Summit County, recording approximately
% of total skier days in the County and % of out-of-state skier days for all Utah
winter resorts. Out-of-state visitors to PCMR stay an average of almost 6 nights in Park
City or Summit County, and spend an average of $309 per day, or almost $2,000 per
visit. PCMR directly employs over 1,100 people during peak operations, with 900
employees over most of the winter season. In addition, businesses located at the base
areas of PCMR employ approximately 700 additional people. The PCMR and base
business employees represent approximately 8% of total Summit County employment
and 22% of Summit County Hospitality and Leisure employment. PCMR tax payments
account for approximately 11% of local tax revenue for Park City. In total, the PCMR
contribution to the Utah tourism economy is over $400 million annually and out-of-state
visitors to PCMR support approximately 4,600 jobs in Utah.
7. The eviction of PCMR from the resort lands would result in a significant negative
impact on the overall economy of Park City and Summit County. These negative impacts
would include a significant drop in overall employment in the City and County, a
significant drop in tax revenues to the City and County, and a significant loss in business
and goodwill to many independent business owners. While I understand PCMR plans to
continue limited winter and summer operations if it is prevented from utilizing the resort
lands, PCMR would lose at least one full winter and summer season while converting to a
smaller operation, and the subsequent limited operations would do little to ameliorate the
negative economic impacts that will result from the smaller operational scale at PCMR.
Furthermore, while some out-of-state visitors who would otherwise visit PCMR may still
come to Summit County and ski and ride at Deer Valley and/or Canyons, the closure or
significant downsizing of PCMR will likely result in a significant decrease in overall out-

4

of-state visitors to Park City and Summit County. If only 11% of the out-of-state skier
days in Summit County are lost because visitors choose to vacation elsewhere when
PCMR is closed or dramatically smaller, I estimate this will result in a loss of
approximately 1,100 jobs and $100 million in annual economic activity in Utah. The
majority of this impact would be felt in the Park City and Western Summit County areas.

Direct Economic Impact of PCMR
8. PCMR first opened on December 21, 1963 under the name of Treasure Mountain with a
gondola and two lifts. The name of the resort was changed to Park City Ski Area in 1966
and then to Park City Mountain Resort in 1996.
1
Today the resort has 16 lifts and three
conveyors that provide access to 116 trails on 3,300 acres of land.
2
PCMR is one of the
largest Utah ski and snowboard resorts, measured by skier days, and also is one of the top
Utah resorts in the number of skier days from out-of-state (or destination) skiers.
PCMR has consistently been one of highest rated Utah resorts; for instance, it was ranked
by SKI Magazine as the 5th best ski resort in North America.
3

9. For the 2012/2013 season, PCMR total revenues exceeded $ .
4
During that
season, PCMR recorded total skier days.
5
Total revenues are made up of lift
ticket sales, ski school, ski rental and repair, food and beverage sales, retail sales, and
other operating revenues, as shown in Table 1.
10. PCMR employs approximately 900 people during most of the winter ski season, with
peak employment of approximately 1,100 during the busiest times of the season,
6
and

1
Seehttp://en.wikipedia.org/wiki/Park City Mountain Resort.LastaccessedMay8,2014.
2
Seehttp://www.parkcitymountain.com/site/mountaininfo/conditions/resortstats.LastaccessedMay8,2014.
3
Seehttp://www.skiutah.com/news/ParkCity50thAnniversary. LastaccessedJune11,2014.
4
SeePCMRCNSDHIST.xls.
5
SeePCMRCNSDHIST.xls.
6
SeePCMRHeadcountandLaborbypayperiod.xlsx.

5

approximately 200 people during the summer season.
7
Total full-time equivalent
employees were approximately 439.
8
See Table 2. The total payroll for PCMR exceeded
$ in the 2012/2013 season.
9
See Table 3. PCMR employees represent
approximately 14% of all Leisure and Hospitality workers in Summit County, and
approximately 5% of all employees in Summit County.
10

11. Independent businesses (such as restaurants, ski shops, and gift shops) located at the base
of PCMR employ approximately 700 people during the winter season and over 250
during the summer season, nearly matching the employee count of PCMR.
11
Taking
these employees into account, PCMR and the independent businesses at its base areas
account for approximately 22% of Summit County Leisure and Hospitality employment,
and 8% of total employment.
12

12. The total sales and use tax revenue generated by GPCC for the State of Utah exceeds $3
million per year.
13
GPCC accounts for approximately 11% of the local tax revenue for
Park City.
14

7
8
SeePCMROrganizationalTemplate042014.xlsx.
9
10
ForSummitCountyemploymentinformation,seethe2012EconomicReporttotheGovernor,Table14.The
stateemploymentdatareportedhereincorrespondcloselytoemploymentdatareportedbytheBureauofLabor
Statistics(seehttp://www.bls.gov/opub/ee/2012/sae/tabled1 201202.pdf),whichdefinesemployedasthetotal
numberofpersonsonestablishmentnonfarmpayrollsemployedfullorparttimewhoreceivepay.ForPCMR
employmentinformation,seeHeadcountandTotalLabor11.12.xlsx.
11
SeeCopyofResortAreaBaseShops.xlsx.ThirtyfiveoftheseemployeesworkattheSundanceInstitute,and
thusmaynotbedirectlyaffectedbyachangeinoperationsatPCMR.
12
SeePCMRHeadcountandLaborbypaypriod.xlsx,CopyofResortAreaBaseShops.xlsxandthe2012
EconomicReporttotheGovernor,Table14.
13
SeeCopyofSalestax1112Season.xlsxandSalestax1213Season.xlsx.
14
ThelocalsalestaxinParkCityisa1.0%tax.Applyingthistaxratetothenettaxablesalesandpurchasesof
PCMRinFY2012(seeCopyofSalestax1112Season.xls)resultsinlocalsalestaxpaymentsofapproximately
$430,000inFY2012,whichisapproximately11%ofthe$4millionlocalsalesandusetaxreportedforParkCityin
2012(seethe2013AnnualReport,UtahTaxCommission,p.39).

6

13. Park City Mountain Resort generates around skier days each year. This
represents approximately % of the skier days in Summit County and % of the skier
days in the State.
15
The PCMR share of destination (or out-of-state) skier visitors is
higher than average for Utah resorts. Based on data from Ski Utah, I estimate that %
of the destination skier days in Utah are skiers at PCMR.
16

Indirect Economic Impact of PCMR
14. The economic impact of PCMR on Park City and Summit County goes far beyond the
direct employment and tax payments of PCMR. As noted above, at the base of PCMR
are numerous lodging, ski/board rental, retail, coffee, restaurant, sales, and non-profit
companies. These businesses could not thrive or likely even survive in an atmosphere
where PCMR is not functioning as a destination winter resort. In addition to businesses
directly located at the PCMR base areas, many Park City and Summit County businesses
depend on the success of PCMR, and the spending by out-of-state skiers who come to
PCMR. Most obviously, hotels, restaurants and shops in Park City and Summit County
depend heavily on the patronage of out-of-state visitors who vacation in the area. When
out-of-state skiers come to PCMR, they stay an average of 5.8 nights and ski an average
of 4.7 days.
17
During the 2010/2011 ski season, the per capita daily expenditure for out-
of-state ski visitors in Summit County was $309.
18

15
SeeMarketShareHistorical.xlsx.
16
IntheSkiUtah201011FinalResearchPresentation,SkiUtahreportsthat62%ofvisitorsaredestination(out
ofstate)visitors.Applyingthispercentagetothereported4,200,000totalUtahskierdaysgivesanestimateof
2,604,000destinationskierdaysinUtah.PCMRreportsthat81%ofitsvisitorsinthe2011/12seasonwere
destination(outofstate)visitors(seePCMRFinalReport201112p.6).Applyingthispercentagetothe
reported totalPCMRskierdays(CopyofPCMRPLHISTORYSUMMARY.xls)givesanestimateof
destinationskierdaysatPCMR.Comparingtheseestimatesofdestinationskierdaysresultsinapproximately %
ofdestinationskierdaysinUtahthatareatPCMR.
17
See1314ParkCityMountainResortReport18.xls,BiweekTabletab.SeealsoPCMR2011/12SeasonFinal
Report,pp.3839andPCMR2012/13SeasonFinalReport,pp.41,43.
18
SeeSkiUtahExpenditureDetail.pdf.Dailyexpendituresforinstateskiersaverage$94.

7

15. More broadly, businesses that supply goods and services to PCMR and PCMR guests, as
well as businesses that supply goods and services to those businesses, depend on the
continued success of PCMR in attracting destination skiers and other visitors. This so-
called indirect impact or multiplier effect is widely recognized in economics and public
policy studies and can be reliably quantified.
19
Calculation of the multiplier effect results
in a reliable estimate of the total economic impact of a business such as PCMR.
16. The total economic impact of PCMR visitors, including both the direct spending by
visitors (and the associated employment) as well as the indirect spending and
employment, is typically measured in two categories: Direct Expenditures and Additional
Earnings. The Direct Expenditures associated with the ski industry include all costs
associated with ski trips by visitors to the state, including lift tickets, meals, lodging,
entertainment, and transportation expenses.
20
Additional Earnings, on the other hand,
represent the economic impact of spending that originates outside of a regional
economy
21
and include the economic activity that is supported by the employees and
businesses that provide the goods and services counted in Direct Expenditures. For
instance, when an out-of-state skier comes to Park City and rents skis, those expenditures
are Direct Expenditures, and these expenditures create the employment, profits and tax
payments from the ski rental shop. When the person who owns or is employed at the ski
shop then goes out to dinner using their earnings from the ski shop, those expenditures
are Additional Earnings, which support the creation of employment, profits and tax
payments from goods and services sold to locals.

19
TheInputOutputmodelusedtocalculatetheeconomicimpactofspendingthatoriginatesoutsideofaregional
economyisknownasRIMSIIandiscommonlyused.See,forexample,Isaacson,Alan,EconomicImpactofthe
UtahAlpineSkiIndustry,July25,2006;Leaver,Jennifer,TheStateofUtahsTourism,Travel,andRecreation
Industry,BureauofEconomicandBusinessResearch,Vol.73,No.4,2014,p.7;2007EconomicReporttothe
Governor,p.215;andFjeldsted,Boyd,RegionalInputOutputMultipliers:Calculation,Meaning,Useand
Misuse,BureauofEconomicandBusinessResearch,Vol.50,No.10,Oct.1990.
20
SeeIsaacson,Alan,EconomicImpactoftheUtahAlpineSkiIndustry,July25,2006.
21
SeeIsaacson,Alan,EconomicImpactoftheUtahAlpineSkiIndustry,July25,2006.

8

17. In the case of the Utah ski industry, the Direct Expenditures and Additional Earnings
have been well documented and analyzed. Several studies have measured the economic
impact of the Utah Ski Industry as noted in Table 4. These include analyses by Ski Utah
(the Utah ski industry trade association), as well as by the Office of the Governor and the
Bureau of Economic and Business Research.
18. The most recently available data for 2013 from the Bureau of Economic and Business
Research shows Out-of-State Direct Expenditures from the Utah ski industry to be $1.1
billion.
22
Using information from other studies, I estimate the associated Additional
Earnings to be approximately $572 million.
23
Considering both the Direct Expenditures
and Additional Earnings, the total economic impact on Utah of skiing-related tourism is
$1.672 billion. Furthermore, skiing-related tourism is estimated to support over 18,000
jobs in Utah.
24

19. As noted previously, PCMR has approximately % of the skier days in the Utah
market.
25
Furthermore, PCMR draws a disproportionally high number of out-of-state
visitors, and thus PCMR has approximately % of the out-of-state skier days in the Utah
market.
26
Apportioning the tourism impact based on the percentage of out-of-state skier
days, I estimate PCMRs contribution to Utah tourism to be over $400 million and 4,600
jobs.
27
The vast majority of this economic impact likely occurs in Park City and Summit
County.

22
Leaver,Jennifer,TheStateofUtahsTourism,Travel,andRecreationIndustry,BureauofEconomicand
BusinessResearch,Vol.73,No.4,2014,p.7.
23
BasedonthestudiesincludedinTable4,AdditionalEarningsareapproximately52%ofOutofStateDirect
Expenditures.Applyingthispercentagetothereported$1.1billioninDirectExpendituresresultsinapproximately
$572millionestimatedAdditionalEarnings.
24
SeeLeaver,Jennifer,TheStateofUtahsTourism,Travel,andRecreationIndustry,BureauofEconomicand
BusinessResearch,Vol.73,No.4,2014,p.7.
25
SeeMarketShareHistorical.xlsx.
26
SupraFootnote16.
27
ThisapportionmentlikelyunderstatesthecontributionofPCMRtotheoverallUtahskieconomy.Outofstate
skiersinSummitCountyhaveahigherdailyexpenditurethanoutofstateskiersoverallatUtahskiresorts.(See
SkiUtahExpenditureDetail,p.1.)Therefore,myapportionmentoftheoveralleconomicimpactofUtahski

9

Economic Impacts of Eviction of PCMR from the Resort Lands
20. If PCMR is evicted from the Resort Lands, not all of PCMRs economic impact on the
community will lost. First, as I understand it, PCMR plans to continue limited winter and
summer operations in the event it is evicted from the resort lands, although re-configuring
the resort operations would likely cause PCMR to not operate at all for a full winter and
summer season. Second, if PCMR limits or ceases operations, some of the out-of-state
visitors who would have otherwise visited PCMR may continue to vacation in Park
City/Summit County and visit the other ski areas in Summit County (Deer Valley and
Canyons). Thus, while PCMR would lose the benefit of these visitors spending, Park
City and Summit County (and the independent business that cater to these visitors) would
not. In my judgment, however, the degree to which either of these factors would offset
any negative economic impacts on the local economy would be small. Thus, eviction of
PCMR from the resort lands will almost certainly have a very large negative impact on
Park City and Summit County (and to a lesser degree, Utah as a whole).
21. As noted above, if PCMR is evicted from the resort lands it plans to re-configure the lifts
(and as necessary other operations such as the Alpine Slide and Zip Line) in order to
operate on the land that it does control.
28
This reconfiguration will involve significant
heavy construction activities, and cannot be accomplished quickly. I understand that, if
PCMR were ordered to vacate the resort lands by J uly 1, the resort would immediately
cease summer operations (since the associated construction activities would not be
compatible with commercial operations), and would not be able to open this winter on an

tourismbasedononlythenumberofskierswhovisitPCMR,andnottheirexpenditureswillunderstatethe
truecontributionofPCMR.
28
MyunderstandingofthePCMRplansifitisevictedfromtheresortlands,andthetimeneededtoimplement
theseplans,isbasedondiscussionswithPCMRmanagement.

10

even limited basis. Thus, an eviction order would cause the loss of an almost full
summer season and a full winter season.
22. Moreover, if evicted from the resort lands, the subsequent commercial operations of
PCMR will be very limited. PCMR has forecasted its future level of sales, revenues, and
expenses in the case that eviction was to occur. With an eviction, PCMR will cease
operation of 12 of its current 16 lifts, and it will have to shorten (and possibly re-align)
three of the four remaining lifts. These modified lifts would have 3,566,063 Vertical
Transport Feet/Hour (VTFH), which is 11% of its current 32,643,548 VTFH. The
number of skiable acres would drop from 3,300 to 202 (6% of the original acreage).
29

23. Given these reductions in lift facilities and skiable land, PCMR has estimated that all
lines of businesses will operate at an 85% reduction compared to full operations, with the
exception of summer operations (assumed unchanged) and a 50% reduction in retail
sales. Based on these assumptions, the post-eviction revenue at PCMR is estimated to be
only 22.5% of its current level.
30
However, this revenue will likely come from almost all
local visitors, rather than the current large proportion of out-of-state visitors. As noted
above, local visitors to Utah ski areas spend far less than out-of-state visitors. Thus, these
local visitors do not have nearly the same economic impact on independent businesses as
do out-of-state visitors. Also, the economic impacts of PCMR estimated above ($400
million annually and 4,600 jobs) are the economic impacts solely from out-of-state
visitors, and do not include any impact from local resort guests. Thus, the planned
limited operations at PCMR are unlikely to preserve any significant part of this economic
contribution to the local economy.
24. To be sure, should PCMR move to limited operations some of the out-of-state skiers who
would otherwise come to PCMR would still come to Summit County, but instead ski at

29
InformationfromPCMR.
30
SeePCMRPLForecast20142015.xlsx.

11

Deer Valley and/or Canyons. Indeed, it is likely that many of the out-of-state skiers who
visit PCMR also ski at Deer Valley and/or Canyons on the same trip. If those visitors
continue to vacation in Summit County at the same rate (i.e., same number of visitors,
same duration of trip, same expenditure levels), then their economic impact will remain
even if they no longer ski at PCMR. The economic activity will not be lost to Summit
County; rather, the direct expenditures will simply be diverted from PCMR to Deer
Valley and/or Canyons. While I believe it is likely that some of this type of diversion
will occur, in my professional opinion the amount of the diversion will be limited.
31

Therefore, eviction of PCMR from the resort lands will lead to a large reduction in out-
of-state visitors to Summit County, and a large decrease in overall economic activity.
25. I base my conclusion of limited diversion on several factors. First, neither Deer Valley
nor Canyons has sufficient capacity to take on all the skier days generated by PCMR. As
noted above, PCMR has approximately % of total skier days in Summit County. If all
of these skiers switch to skiing at Deer Valley and Canyons, this would almost double the
number of skiers at both resorts. Since most skier days occur by definition on the most
popular ski days, most of the diverted PCMR skier visits would occur on days when Deer
Valley and Canyons are already at their busiest. On these busy days these resorts are
usually already at capacity on parking, and are otherwise crowded (with long lift lines
and crowded on-mountain amenities such as restaurants and ski schools). Further, Deer
Valley limits the number of passes each day to 7,500, and states on its website that
[d]uring holiday periods such as the week between December 25 through J anuary 4, as

31
Itisalsoimportanttonotethateveniftherewascompletediversion(whichIbelievewouldbeextremely
unlikely)andnonetimpactontheParkCity/SummitCountyeconomy,thisdoesnotimplythattherewouldbeno
harmtolocalindependentbusinessesinParkCityandSummitCounty.Asnotedabove,independentbusinesses
locatedatthebaseareasofPCMRemployapproximately700people.IfPCMRsignificantlydownsizesits
operations,leadingallormostdestinationskierstoinsteadskiatDeerValleyorCanyons,theseindependent
businesseswillsuffersignificantharm.

12

well as Presidents Day weekend, the resort reaches capacity.
32
The holiday period,
December 25 J anuary 4, is precisely the period when PCMR is likely to be busiest.
26. In addition, Deer Valley does not allow snowboarding, and approximately % of PCMR
visitors are snowboarders (and thus much more than % of the out-of-state families and
other groups that visit PCMR likely have at least one snowboarder in their group).
33

Thus, for many of the PCMR visitors, Deer Valley is not an alternative.
27. Finally, the dramatic downsizing (and closure for at least one season) of PCMR would
likely make Park City and Summit County a less desirable vacation destination, and lead
to a decrease in the number of out-of-state skiers who choose to vacation there. One of
the attractions of Park City and Summit County as a ski destination is the availability of
three ski resorts in close proximity. Visitors to Park City and Summit County can and
do ski and ride at multiple resorts (each with a distinctive personality) on a single visit.
The downsizing of PCMR would leave visitors with a choice of only two full service
resorts in Summit County, making Park City and Summit County a less desirable
vacation destination. Furthermore, of the three ski areas in Summit County, only PCMR
has a physical connection to the town of Park City, with the Town Lift and associated ski
runs that terminate in Old Town, as well as a main base location that is close to town.
Thus, only PCMR provides potential visitors with the option to stay in/close to town
while still at/close to the ski area.
28. If only 10% of the out-of-state skier days at PCMR were lost to another destination such
as Lake Tahoe or Colorado because of the downsizing/closure of PCMR, this would
result in a loss of approximately $40 million in economic activity per year, and
approximately 460 jobs. These 10% of PCMR out-of-state skier days would represent

32
Seehttp://www.deervalley.com/About/Information/Historyand
http://www.deervalley.com/Tickets/Ticket/TicketLanding.LastaccessedMay20,2014.
33
See1314ParkCityMountainResortReport18.xls,Equipmenttab.

13

only about 4.5% of all out-of-state skier days in Summit County.
34
If 25% of the out-of-
state skier days at PCMR or only about 11% of out-of-state skiers days in Summit
County were lost to another destination, this would result in a loss of approximately
$100 million in economic activity per year, and over 1,100 jobs. Most of these losses
would occur in Park City and Summit County.

Conclusion
29. It is clear that PCMR plays a critical role in the Park City and Summit County
economies. In addition to the significant direct impact of PCMR in terms of direct
employment and taxes paid spending by visitors to PCMR supports a large number of
jobs and businesses in the area. While some of these same resort visitors may continue to
visit Summit County should PCMR be forced to limit its operations, it is likely that many
visitors especially out-of-state visitors would choose to vacation in other destination
areas (such as Colorado, California, etc.). Thus, eviction of PCMR from the resort lands
would almost certainly have a very large negative impact on the economies of Park City
and Summit County, leading to widespread unemployment and harm to numerous
independent businesses. My general conclusion is apparently shared by the Park City
community. In a recent edition of the local newspaper, The Park Record, the
newspapers editor stated:
[The PCMR/Talisker] impasse poses a significant threat to the
local economy. There is no logical portal to the disputed terrain
other than the existing PCMR base area, and that plaza's proximity
to the heart of Park City's commercial district makes it an integral

34
Asnotedabove,PCMRhasapproximately %oftotalskierdaysinSummitCounty.WhilePCMRhasahigher
thanaverageforthestateofUtahmixofoutofstateskiers,thesameislikelytrueforDeerValleyand
Canyons.Assumingthateachresorthasthesamepercentageofoutofstateskiersasithasoftotalskiers,then
PCMRwouldhaveabout %ofoutofstateskierdaysinSummitCounty.

Charles River Associates

Exhibit1.CurriculumVitaofGregoryD.Adams Page 2
19891992 Research Assistant and Teaching Assistant (1992), University of
California-Berkeley, Department of Agricultural and Resource Economics,
Berkeley, CA
Research assistant for Professor Gordon Rausser. Primary areas
of research were GATT reforms, US agricultural policy, and the
application of non-cooperative game theory and bargaining theory for
environmental-policy analysis.
Teaching assistant to Professor David Zilberman for an upper-division
undergraduate course in environmental and natural resource economics.
19871988 Research Assistant, Department of Agricultural and Resource Economics,
University of Maine, Orono, ME
Research assistant for Professor J ames Leiby. Primary areas of research
were the statistical evaluation of the productivity of agricultural research
and technology adoption among Maine farmers.
19831985 Volunteer, Peace Corps, Philippines
Designed and implemented a municipal agro-forestry extension program.
Publications
Articles
Comment on Hospital Mergers and Competitive Effects: Two Retrospective Analyses. With
Monica Noether. International Journal of the Economics of Business, Vol. 18, 2011.
"Not Good Enough for Government Work: Geographic Market Definition and the FTCs Case
Against Chicagoland Physician Associations." Journal of Competition Law and Economics,
forthcoming.
Risk, Stigma, and Property Values: What are People Afraid Of? With Robin Cantor. In J . Flynn, H.
Kunreuther, and P. Slovic (eds.), Risk Media and Stigma, EarthScan Publications, Ltd., 2001.
An Economic Evaluation of BWI Custom Kitchens and Indirect Purchaser Classes in Horizontal
Price-Fixing Cases. With G.C. Rausser. Competition, 6:1, Summer 1997.
Modeling Multilateral Negotiations: An Application to California Water Policy. With G.C. Rausser
and L.K. Simon. Journal of Economic Behavior and Organization, Vol. 30, 1996.
The Three Way Water Agreement Process: A Consensual Approach to Water Policy. Natural
Heritage Institute, San Francisco, CA, 1993.
A Collective Choice Model for Tradable Water Rights. With G.C. Rausser and L.K. Simon.
Working Paper, Department of Agricultural and Resource Economics, University of California at
Berkeley, 1992.
The Returns To Research in Maine: The Case of a Small Northeastern Experiment Station. With
J .D. Leiby. Northeastern Journal of Agricultural and Resource Economics, 20:114, 1991.

Charles River Associates

Exhibit1.CurriculumVitaofGregoryD.Adams Page 3
The Gains From Investment in Agricultural Research and Extension at the University of Maine.
With J .D. Leiby. Maine Agricultural Experiment Station, Miscellaneous Report 341, August 1989.
The Estimation of the Returns to Agricultural Research and Extension in Maine: 19511985. With
J .D. Leiby, Maine Agricultural Experiment Station, Technical Bulletin 135, J une 1989.
Presented papers
Switching, Adding, or Shifting: Network Effects, Network Compatibility and Lock-In. With J .R.
Kearl. Invited paper presented at the annual meeting of the Society for Computational Economics,
2002.
Risk, Stigma, and Property Value: What Are People Afraid Of? With Robin Cantor. Presented at
the Annenberg Conference on Risk, Media and Stigma, University of Pennsylvania, March 2324,
1997.
The Value Added of Multilateral Bargaining. With C. Bazelon. Annual Meetings of the American
Agricultural Economics Association, Baltimore, Maryland, August 810, 1992.
A Collective Choice Model for Tradable Water Rights. With G.C. Rausser and L.K. Simon.
Resources for the Future Conference on Resolving Water Quantity/Quality Disputes, Washington,
DC, May 23, 1992.
J .D. Leiby. Annual Meetings of the Northeast Agricultural and Resource Economics Association,
Truro, Nova Scotia, J une 19, 1990.
Published abstracts
J .D. Leiby. Northeastern Journal of Agricultural and Resource Economics, 19:150, 1990.
Fellowships
Regents Fellowship, University of California at Berkeley, 19891991.
Naumann Fellowship, University of Maine, 19871989.
Awards
Outstanding Graduate Student Instructor, Department of Agricultural and Resource Economics,
University of California at Berkeley, Fall 1993

Exhibit2.PriorTestimonyofGregoryD.Adams Page1
Trial and Deposition Testimony of Gregory D. Adams: 1999-2013

Advanced Micro Devices v. National Semiconductor
United States District Court, Northern District of California
Deposition September 1999

Mark and Sheila Harris v. Richard Kohler and Kevan C. Eyre
Third J udicial District Court, Salt Lake County, Utah
Deposition 2000

United States of America v. Rodney Cantwell
United States District Court for the District of Utah
Trial Testimony August 2000

Weather Tec. v. Dow Chemical
United States District Court
Eastern District of California
Deposition December 2000
Trial Testimony April 2001

Monsanto v. Trantham
Deposition J une 2001

Salaeh v. Consolidated Industries

Yoshida v. Simplot
Deposition and Trial Testimony 2001 2002

Dolan v. World Oil Company
Deposition April 2002

Pinal Group, et al., v. Newmont Mining Corp., et al.
Deposition J anuary 2003

Class v. Stericycle Inc.
United States District Court District of Utah, Central Division
Deposition J uly 2005

Owner-Operator Independent Driver Association v. Landstar Inway, Inc.
Deposition 2006

CITTA, Inc v. Skywest
Deposition 2007

IGT v. Alliance Gaming Corp., Bally Gaming, International, Inc., Bally Gaming, Inc.
Deposition 2007

Exhibit2.PriorTestimonyofGregoryD.Adams Page2
Testimony before the Utah State Water Board
Deposition December 2008

Cedar Mountain Environmental, Inc. v. EnergySolutions, Inc.
Deposition

Narayan et. al., v. EGL, Inc.
Deposition September 2011

Alpacas of America v. Excel Feeds
Deposition February 2012

J ensen v Dow Chemical, Shell Chemical, et. Al.
Trial Testimony December 2013
Exhibit 3
Materials Considered
Legal and Pleadings
Amended Stipulated Protective Order, 10/25/2013
Answer to Second Amended Complaint, 10/28/2013
Complaint, 3/9/2012
Corrected Memorandum, 5/15/2012
Defendants' Memorandum ISO Motion for Partial Summary J udgement, 4/21/2014
Defendants' Motion for Partial Summary J udgement, 3/14/2014
Defendants' Motion to Dismiss, 4/12/2012
Defendants' Reply Memorandum ISO Motion for Partial Summary J udgement, 4/21/2014, and Exhibits
Defendants' Response to 2nd set of requests for Admission and 3rd set of Interrogatories, 1/17/2014
Defendants' Responses to Plaintiff's 1st set of Requests, 7/9/2013
Defendants' Responses to Plaintiffs' 2nd set of Interrogatories and Requests, 8/26/2013
Defendants' Supplemental Response to Interrogatory No. 5, 11/19/2013
Defendants' Supplemental Responses to Plaintiffs' Request for Admission No. 12 and Interrogatory No. 4, 8/23/2013
Memorandum Decision and Order, 11/20/2012
Memorandum of Law ISO Defendants' Motion to Dismiss, 4/12/2012
Motion for Leave to File Amended Complaint, 5/21/2012
Plain iff's Memorandum IOT Mo ion for Partial Summary J udgement, 4/2/2014
Plain iff's Memorandum IOT Mo ion to Dismiss, 5/15/2012
Plain iff's Motion for Partial Summary J udgement, 5/15/2012
Plain iff's Objections and Responses to 1st set of Requests, 8/15/2013
Plain iff's Objections and Responses to 2nd set of Requests, 1/3/2014
Plain iff's Objections and Responses to 3rd set of Requests, 1/20/2014
Reply to Counterclaims of UPCM and Talisker, 11/18/2013
Reply to Paragraphs 66-91 of Counterclaims by UPCM and Talisker, 3/6/2014
Second Amended Complaint, 9/25/2013
Depositions and Declarations
Declaration of J enni Smith, 5/14/2012
Second Declaration of J enni Smith, 8/14/2012
Declaration of Mark Harrington, 2/7/2014, and Exhibits
Deposition of Anthony Iannazzo, 2/12/2014, and Exhibits
Deposition of David Smith, 11/22/2013, and Exhibits
Deposition of Flera, LLC, 1/8/2014 (30(b)(6)), and Exhibits
Deposition of Herwig Demschar, 9/13/2013, and Exhibits
Deposition of Ian Cumming, 12/17/2013, and Exhibits
Deposition of J ack Bistricer, 11/20/2013, and Exhibits
Deposition of J enni Smith, 9/11/2013, and Exhibits
Deposition of J enni Smith, Vol.2, 1/16/2014, and Exhibits
Deposition of J ennifer Botter, 9/12/2013, and Exhibits
Deposition of J ennifer Botter, Vol.2, 1/16/2014. and Exhibits
Deposition of J ohn Cumming, 1/7/2014, and Exhibits
Deposition of Mandy Scully, 11/21/2013, and Exhibits
Deposition of Maria McGuiness, 10/7/2013, and Exhibits
Deposition of Matt Ireland, 12/17/2013, and Exhibits
Deposition of Michael Goar, 12/12/2013, and Exhibits
Deposition of Rebecca Chris ianson, 11/18/2013, and Exhibits
Deposition of Rob Katz, 1/16/2014, and Exhibits
Deposition of Tim Brennwald, 9/12/2013, and Exhibits
Surveys
Appendix 1- Survey Instrument
Economic Analysis of US Ski Areas
Kottke National End of Season Survey
NSAA Kottke Survey
Park City Customer Satisfaction Surveys
Park City Mountain Resort Winter Research 2011/12
PCMR 2011/12 Season Final Report
PCMR 2012/13 Season Final Report
PCMR Winter Research 2011/2012
RRC Associates Resort Guest Sa isfaction
Ski Utah 2010/11 Research Final Report Presentation
Ski Utah Expenditure Model Calcula ions
Ski Utah Open Ended Comments
1314 Park City Mountain Resort Report 18
PCMR Financial Documents
3 Kings Lift IRR
Adventure Zones IRR
All at one time Pond and Equipment IRR
Axcess Gates IRR
1
Axcess Gates IRR 4.26.12 Update for Y1
Cash Contributions
CDC Restoration and Construction Budget Quotation, 12/8/2010
CobraDog IRR
Copy of PCMR-GORGO 3-29-2014 v2
Copy of Salestax 11-12 Season
Flying Eagle Zip Ride IRR
FY 11 - 12 Capex per FAS
G&A Financial Analysis Worksheet
GI Trial Property Tax 12-13
GI Trial Property tax 13-14
GPCC Property Tax Information
Mid-Mnt BBQ IRR
NSAA 1314 End of Season Survey Park City UT
On Mountain Beginner Zone with Conveyer Cover IRR
PCMR 2012 Personal Property Statements and support
PCMR 5 Year Capital Expenditures Forecast, FY 2011-2015
PCMR CNSD Dep Bud Hist
PCMR CNSD HIST
PCMR Fixed Assets
PCMR FY14 WIPS
PCMR General Ledger for 2012
PCMR General Ledger Summary for 2012
PCMR P&L 5 years in Dollars
PCMR PL Dep Hist
PCMR PL Forecast 2014.2014
PCMR PL History Detail
PCMR PL History Summary
PCMR_BALSHT.xls
PCMR-GORGOZA 03-30-2013
PCMR-WW Forecast 2016-2018
Personal Property Tax Statements 13
Phase 1 SM Pond IRR
Phase 2 Pond Only IRR
Powdr Corporation and Subsidiaries Consolidated Financial Statements, May 31, 2008 and 2007
Prop & Personal Prop Tax 11 12
Sales and Use Tax Documents, 2007-2012
Salestax 12-13 Season
Salestax 13-14 Season
Ski-SB Learner Zone no Covers IRR
Ski-SB Learner Zone wi h Covers IRR
Snowcat Purchaes on Rotation Schedule
Snowmaking Recurring Capital
Summer F&B IRR
Trial Balance 12-13
Trial Balance 13-14
PCMR Other Documents
08-09 Donation Log
09-10 Donation Log
10-11 Donation Log
11-12 Donation Log
12-13 Donation Log
12-13 Donation Log Marketing
13-14 Donation Log
13-14 Donation Log Marketing
2010 - 2011 In-Kind Dona ions
2011 - 2012 Headcount and Total Labor
2011 - 2012 In-Kind Dona ions
2012 2013 Season Vouchers Issued List
2013 2014 Season Vouchers Issued List
Capex 2013
Capex 2014
Charitable Contributions 12-13
Charitable Contributions 13-14
Food Service Hourly Performance Summary
Load Out.doc
Load Out.xlsx
Market Share Historical
PCMR Base Area Map
PCMR Headcount and Labor by pay period
PCMR Load Out.xlsx
PCMR Organizational Template 04 2014
PCMR Ticket Mix
Resort Base Area Shops
Skier Days Data
2
Winter Tracking Sheet 07.08
Third Party Documents
2007 Economic Report to the Governor
2012 Economic Report to the Governor
Isaacson, Alan, Economic Impact of the Utah Alpine Ski Industry,J uly 25, 2006
Economic Impact Analysis of Proposed Ski Interconnect, 2010, RCLCO
Fjeldsted, Boyd, Regional Input-Output Multipliers: Calculation, Meaning, Use and Misuse,Bureau of Economic and Business Research, Vol. 50, No. 10, Oct. 1990
Leaver, J ennifer, The State of Utahs Tourism, Travel, and Recreation Industry,Bureau of Economic and Business Research, Vol. 73, No. 4, 2014
Utah State Tax Commission Annual Report, 2012-2013 Fiscal Year
3
Table 1
Total Revenues at PCMR FY 2013
Confidential - Attorneys' Eyes Only Tier 2 1
Table 2
PCMR Winter and Summer Employees
Table 3
PCMR Winter and Summer Payroll
Table 4
Season
Out-of-State Direct
Expenditures
Additional
Earnings
Jobs Supported
2005/2006
1
$745,000,000 $417,000,000 19,323
2005/2006
2
$563,000,000 $281,000,000 12,700
2006/2007 - - -
2007/2008
3
$858,000,000 $441,000,000 18,000
2008/2009 - - -
2009/2010 - - -
2010/2011
4
$990,000,000 - -
2011/2012 - - -
Sources:
[1] Economic Impact of the Utah Alpine Ski Industry, 2006, BEBR, Table 3
[2] 2007 Economic Report to the Governor, p. 215
[3] Economic Impact Analysis of Proposed Ski Interconnect, 2010, RCLCO, p. 2
[4] Ski Utah 2010-2011 Final Research Presentation, p. 35
[5] The State of Utah's Tourism, Travel, and Recreation Industry, 2014, BEBR, p. 7
Notes:
[1] Additional earnings in 2012/2013 are estimated based on the percent of Out-of-State
Direct Expenditures in other years (52%). Applying this percentage to the reported
$1.1 billion in Direct Expenditures results in approximately $572 million estimated Additional Earnings.
2012/2013
5
$1,100,000,000 18,419
$572,000,000
(estimated)
Utah Ski/SnowBoarding Tourism Impact
1

EXHIBIT B
19320090


Plaintiffs,
vs.
1 THROUGH 10,
Defendants.
DECLARATION OF JENNI SMITH

Case No. 120500157

J udge Ryan Harris
company,
vs.

19320090

2

I, J enni Smith, declare as follows:
1. I am over the age of 18 years, a resident of the State of Utah, and am fully
competent in all respects to testify regarding the matters set forth herein.
2. I am the President and General Manager of Plaintiff Greater Park City Company
(GPCC) d/b/a Park City Mountain Resort (PCMR). I have held this position since J uly
2010. I have been employed by GPCC in various capacities since 1980. I have personal
knowledge of the facts set forth in this Declaration, except for those facts stated upon
information and belief. As to those facts, I am reliably informed and believe them to be true
according to my best information and belief.
3. Currently, GPCC owns and operates 16 lifts on PCMR.
4. Should GPCC be required to vacate the Leased Premises, GPCC will remove the
following equipment:
a. All removable snowmaking equipment, including the compressors, pumps, and
fixed snow guns (collectively, the Snowmaking Equipment);
b. All equipment and furniture housed in the Summit House Restaurant, the Mid
Mountain Restaurant, and the Snow Hut Restaurant (collectively, the Restaurant
Equipment);
c. All equipment, parts, tools, and vehicles stored in the King Shop Maintenance
Building (collectively, the Mechanical Equipment);
d. All equipment located in the Summit Patrol and Demo Center buildings and the
Yurt (collectively, the Patrol Equipment);
e. The motors, gearboxes, drives, chairs, cables, assemblies, and terminals of the
J upiter Lift, the Thaynes Lift, and the Motherlode Lift;
f. The motors, gearboxes, drives, chairs, cables, towers, assemblies, and terminals of
19320090

3

the Town Lift, the Crescent Lift, the King Con Lift, the Silverlode Lift, the
Bonanza Lift, the McConkeys Lift, the Pioneer Lift, the Eaglet Lift, and the
Silver Star Lift;
5. Should GPCC be required to vacate the Leased Premises, GPCC intends to (1)
shorten, realign, or relocate the Payday Lift, the Three Kings Lift, and the Eagle Lift, (2)
reconfigure its snowmaking pipe and guns, (3) relocate the top station of the zip line and two
magic carpets, and (4) reconfigure the alpine coaster. Any portions of the modified ski lifts that
are currently located on the Leased Premises and not necessary to the resulting modified lifts will
be removed.
6. GPCC estimates that, using a crew of approximately 40 people working 7 days a
week, it will take a total of ten weeks to remove the Snowmaking Equipment, the Restaurant
Equipment, the Mechanical Equipment, and the Patrol Equipment and that the removal will cost
approximately $427,570.
7. GPCC estimates that it will take approximately thirty-three weeks working 24
hours a day, 7 days a week with nearly full-time use of one or more helicopters to remove the
(1) motors, gearboxes, drives, chairs, cables, assemblies, and terminals of the J upiter Lift, the
Thaynes Lift, and the Motherlode Lift and (2) the motors, gearboxes, drives, chairs, cables,
towers, assemblies, and terminals of the Town Lift, the Crescent Lift, the King Con Lift, the
Silverlode Lift, the Bonanza Lift, the McConkeys Lift, the Pioneer Lift, the Eaglet Lift, and the
Silver Star Lift. GPCC estimates that the cost of the foregoing would be approximately
$3,570,000.
8. Thus, assuming no or nearly no snow and dry roads, GPCC believes it can remove
all of the equipment identified in paragraph 4 in a total of thirty-three weeks subject to
manpower availability.
19320090

4

9. With respect to the necessary realignments and modifications, GPCC estimates
that it could shorten the Eagle Lift in ten weeks at a cost of $325,000, shorten Three Kings Lift
in eight weeks at a cost of $275,000, and realign the Payday Lift in fifteen weeks, at a cost of
$1,100,000. GPCC has not determined the exact scope of the remaining modifications, but
estimates that these modifications would take roughly 15 weeks and cost approximately
$690,000.
10. Some of the foregoing work can only be done during the construction season,
which runs from approximately J une 1 through October 31. Any work done outside the
construction season will take substantially more time and cost significantly more. For example,
if it starts to snow, GPCC estimates that it will take at least an additional seven weeks (for a total
of 40 weeks) to remove all the equipment identified above, in paragraph 4.
11. In addition, GPCC estimates that it will cost approximately $17,000 per month to
store the equipment removed from the Leased Premises.
12. All of the time and cost estimates herein are based upon GPCCs experience with
construction and operating PCMR, but ultimate costs in time and money can vary substantially
based upon weather, snowmelt, labor availability, and other variables.
13. Should GPCC subsequently be permitted to reoccupy the Leased Premises, it
estimates that it would take at least two construction seasons to reinstall all the previously
removed equipment and undo any lift modifications. It is difficult to estimate, but GPCC
believes that this would cost approximately $7,292,270.
14. During any period in which GPCC was not permitted to occupy the Leased
Premises and was not involved in the construction necessary to remove, modify, or reinstall its
equipment, GPCC intends to continue to operate in the summer season and to operate on a
substantially reduced scale during the winter. PCMRs summer operations include an alpine

EXHIBIT C


Plaintiffs,
vs.
1 THROUGH 10,
Defendants.
DECLARATION OF
GIL A. MILLER

Case No. 120500157

J udge Ryan Harris
company,
vs.

I, Gil A. Miller, declare as follows:
1. I am over the age of 18 years, a resident of the State of Utah, and am fully
competent in all respects to testify regarding the matters set forth herein.
2. I am the Senior Managing Member of Rocky Mountain Advisory, LLC (RMA)
in Salt Lake City, Utah and have been since I founded the firm in March 2010. I hold a Bachelor
2

of Science in Accounting and a Master of Accounting from Brigham Young University. I am a
Certified Public Accountant, a Certified Fraud Examiner, and a Certified Insolvency and
Restructuring Advisor. I am also Certified in Distressed Business Valuations.
3. I am a member of the American Institute of Certified Public Accountants, Utah
Association of Certified Public Accountants, Association of Certified Fraud Examiners, and the
Association for Insolvency and Restructuring Advisors.
4. Prior to founding RMA, I was the Managing Director in the Salt Lake City, Utah
office of the international public accounting firm PricewaterhouseCoopers, LLP. I have 30
years experience in public accounting where I have been primarily involved with investigative
accounting work, bankruptcy case work, troubled company workouts, breach of contract,
contract claims, and fraud examinations. I testify regularly in state and federal court. I also
regularly serve as a bankruptcy trustee, receiver, and arbitrator. I have testified numerous times
regarding economic damages and lost profits. I am a member of the Commercial Panel of the
American Arbitration Association and a Fellow in the American College of Bankruptcy.
5. I have reviewed certain financial information of Plaintiff Greater Park City
Company (GPCC) which owns and operates Park City Mountain Resort (PCMR) and other
documents, pleadings, and discovery in this case.
6. I understand that since the early 1970s GPCC has operated PCMR on over 3,000
acres of property related to two leases (the Leased Premises) and other lands. GPCC has built
and maintained on the Leased Premises ski lifts, ski runs, day lodges, restaurants and other
winter and summer recreational and resort facilities associated with the operations of a
recreational resort.
1
The financial statements I obtained indicate that as of today, in excess of
$110 million of assets have been invested in PCMR. According to PCMR management
(Management), without the right to occupy the Leased Premises, GPCC could not operate
PCMR as a destination ski resort.
7. During the winter months, PCMR operates a ski and snowboard destination resort
based in Park City, Utah. During the summer months, PCMR offers a variety of activities

1
Declaration of J enni Smith, dated May 14, 2012 at 6-7.
3

including an alpine slide, alpine coaster, zip lines, mountain biking and hiking trails, scenic lift
rides, and a variety of other summer activities.
2

8. Based on the materials I have reviewed, I understand that GPCC may be ordered
to vacate the Leased Premises. In this case, I understand GPCC would appeal the decision. I
have been asked to assist Management in quantifying the amount of lost profits for economic
damages that could be sustained by GPCC if it were required to vacate the Leased Premises, but
then prevail on appeal and reoccupy the Leased Premises. Actual profits lost will be more
readily ascertainable when and if PCMR is required to vacate but later permitted to reinstall.
9. In addition, I understand that GPCC would also suffer losses due to the costs that
would be incurred to vacate and reoccupy the Leased Premises in the event of a wrongful
eviction. Such costs would include estimated costs to remove and reinstall ski lift equipment,
snowmaking equipment, and lodge and restaurant equipment that exist on the Leased Premises. I
understand that those costs are being estimated by Management and therefore are not included in
this analysis. I discussed the analysis of costs to vacate and re-occupy the Leased Premises with
Management to ensure that certain costs are not duplicated in my analysis.
PCMR Limited Operations
10. I understand that if PCMR is required to vacate the Leases Premises, the GPCC
Management will remove snowmaking equipment, restaurant equipment, shop equipment, and
lift equipment from the Leased Premises (Load-out). In addition, PCMR would have to
realign and shorten certain lifts to continue to operate in a limited capacity and to completely
vacate the Leased Premises (Realignment).
11. We understand that PCMRs current lifts would be removed, realigned, shortened,
or relocated as follows:

2
http://www.parkcitymountain.com/site/summer/activities
4

a. Town Lift - Removed
b. Payday Lift - Realigned
c. Crescent Lift - Removed
d. First Time Lift No Change
e. 3 Kings Lift - Shortened
f. Eagle Lift Shortened
g. Eaglet Lift - Removed
h. Silver Star Lift - Removed

i. King Con Lift - Removed
j. Bonanza Lift - Removed
k. Silverlode Lift - Removed
l. Motherlode Lift - Removed
m. Thaynes Lift - Removed
n. McConkeys Lift - Removed
o. Pioneer Lift - Removed
p. J upiter Lift - Removed
12. Vacating the Leased Premises would require PCMR to remove all but four lifts
that it has historically operated. PCMR would continue to operate the Payday, First Time, 3
Kings, and Eagle lifts. I understand that PCMR would modify three of these four remaining lifts.
All other lifts would be removed. Therefore, I understand that PCMR would be required to
remove or modify 15 of the 16 lifts it has historically operated.
13. I understand that after the Load-out and before the reinstallation, assuming PCMR
prevails on appeal, PCMR would continue to have limited summer and winter operations.
Summer operations would consist of an alpine slide, an alpine coaster, a zip line, and mountain
biking and hiking. Winter operations would include a terrain park, ski school, and limited
skiing. I refer to the operations described in this paragraph as Limited Operations.
14. I was asked to perform an analysis of lost profits GPCC could sustain assuming
that PCMR is required to vacate the Leased Premises. I have been asked to assume that GPCC is
ordered to vacate PCMR on J uly 1, 2014, and that the appeal process could take two years
(Eviction Period). I discussed with Management when, if evicted, they would be able to
complete the Load-out and Realignment and generate revenue under Limited Operations.
Management of PCMR indicated that during the Load-out and Realignment, there would be few,
if any, revenue generating operations that could be safely and effectively performed as PCMR
would essentially be a construction zone. Management of PCMR expects that based on a J uly 1,
2014, eviction order, it would take an estimated 40 weeks to perform the Load-out and
5

Realignment. This includes construction during winter months. Based on these assumptions,
PCMR does not believe it can begin revenue-generating Limited Operations until May of 2015.
15. We have been asked to assume that PCMR prevails on appeal and is permitted to
reoccupy the Leased Premises in J une of 2016. J une is generally considered the beginning of the
construction season for PCMR depending on how quickly snow melts. Management again
estimated the amount of time it would take to reoccupy the Leased Premises by reinstalling
equipment required to operate. To reoccupy the Leased Premises, PCMR would again operate as
a construction zone and accordingly generate little, if any, revenue during a reinstallation of
equipment. Management estimates that in the summer construction season beginning J une of
2016, it will be able to realign or reinstall certain lifts to have a total of eight lifts operational by
December 2016 and all lifts operational within a total of 18 months, or December 2017
(Reinstallation Period).
Lost Profits
16. I analyzed the profits that GPCC could lose by operating PCMR based on Limited
Operations until it is able to reoccupy the Leased Premises. Our analysis is an estimate of lost
profits based on our consideration of historic operations and certain assumptions. Actual profits
lost will be more readily ascertainable when and if PCMR is required to vacate but later
permitted to reinstall. Therefore, I will update my analysis over the course of time.
17. My analysis followed the guidelines provided by the American Institute of
Certified Public Accountants (AICPA) to estimate lost profits. These guidelines include,
(i.) Estimating revenue but-for an eviction order,
(ii.) Estimating the revenue PCMR will generate based on Limited Operations. The
difference between the estimated but-for, uninterrupted revenue and revenue
during Limited Operations is lost revenue,
(iii.) Subtracting from lost revenue costs that PCMR avoided, in order to arrive at lost
profits, and
(iv.) Discounting future lost profits to present value.
18. Management estimated that it will be able to operate at approximately fifteen
6

percent capacity during the Eviction Period. This analysis is based on lift capacity, numbers of
lifts, amount of terrain available for continued use, and an estimate of ticket sales in units and
dollars during Limited Operations.
19. Revenue but-for an eviction is based on PCMRs budgeted fiscal year 2015
expected operations. I projected uninterrupted revenue thereafter based on third party industry
growth estimates. I obtained industry growth estimates from a publication titled IBISWorld
Industry Report 71392: Ski & Snowboard Resorts in the US, to determine the projected changes
in revenue for ski and snowboarding resorts in the US over the Eviction Period. This report is
dated December 2013.
20. As discussed, Management estimated the interrupted lift revenue PCMR would
generate over the Eviction Period as fifteen percent of the uninterrupted revenue discussed
above. Apart from its mountain operations, Management estimated retail revenue at PCMR
would decline by 50 percent. After the Load-out and Realignment but during the Limited
Operations, Management estimated summer operations would continue, albeit with some
interruption. The difference between uninterrupted revenue and revenue expected during
Limited Operations equals lost revenue.
21. Next, I estimated costs that PCMR would save or avoid by not operating at full
capacity. Subtracting avoided costs from lost revenue equals lost profits. Avoided costs are
costs that PCMR would have incurred to generate the lost revenue. Since the revenue is not
generated, the costs are avoided. To estimate lost profits, I estimated the costs that PCMR is
expected to avoid on the incremental lost revenue.
22. To estimate avoided costs, I analyzed PCMRs revenue and cost structure from
the previous five years of operations.
3
I analyzed the nature of the costs incurred by category
and discussed PCMRs cost structure with Management to determine whether the costs appear
variable, moving with changes in sales, or fixed, not fluctuating with sales. I performed some

3
The most recent fiscal year included actual operations through the fiscal period ended April 26, 2014, and
budgeted operations through May 31, 2014.
Greater Park City Company, et al. vs. Talisker Land Holdings, LLC et al. Schedule 1
Declaration of Gil A. Miller
Analysis of PCMR Lost Profits if Wrongfully Evicted as of J une 1, 2014
Fiscal Years 2015 through 2019
PRESENT VALUE OF FUTURE LOST PROFITS
Confidential Attorneys Eyes Only Tier 2
FUTURE LOST PROFITS ANALYSIS
Greater Park City Company, et al. vs. Talisker Land Holdings, LLC et al. Schedule 2.1
Declaration of Gil A. Miller Page 1 of 2
PROJECTED INTERRUPTED REVENUE BY FISCAL YEAR
PROJECTED INTERRUPTED REVENUE BY FISCAL YEAR Page 2 of 2
Fiscal Years Ended 2010 through Aprile 26, 2014
HISTORIC BALANCE SHEETS
Fiscal Years Ended 2010 through Forecasted Fiscal Year 2014
HISTORIC INCOME STATEMENTS - SUMMARIZED
Declaration of Gil A Miller
Fiscal Years Ended 2010 through 2014
HISTORIC INCOME STATEMENTS - DETAILED
Fiscal Year Ending 2014
TRAILING TWELVE MONTH REVENUE BY CATEGORY
Analysis of PCMR Lost Profits if Wrongfully Evicted as of J une1, 2014
COMMON SIZE HISTORIC OPERATING RESULTS AND EXPENSE CATEGORY ANALYSIS
Declaration of Gil A. Miller Page 1 of 2
LOST PROFITS ANALYSIS - AVOIDED OPERATING COSTS
LOST PROFITS ANALYSIS - AVOIDED OPERATING COSTS Page 2 of 2
CAPITAL EXPENDITURE ANALYSIS
ESTIMATE OF ONGOING PCMR OPERATIONS IF ORDERED TO VACATE
1. Operations based on number of lifts
Number of ski lifts - Limited operations 4
Number of ski lifts - Current operations 16
Percentage of ski lifts operating 25.0%
2. Vertical Transport Feet per Hour (VTFH)
VTFH - Limited operations (Four lifts) 3,566,063
VTFH - Current operations (Sixteen lifts) 32,643,548
Percentage of VTFH 10.9%
3. Skiable Acres
Skiable acres - Limited operations 202
Skiable acres - Current operations 3,300
Percentage of skiable acres 6.1%
4. Estimated Ticket Sales (Units)
5. Estimated Ticket Sales (Dollars)
Range of Expected Winter Operations 6% to 25%
Selected Percent of Limited Operations to Current Operrations 15.0%

EXHIBIT D
19421949

1

Alan L. Sullivan (3152)
Amber M. Mettler (11460)
15 West South Temple, Suite 1200
Gateway Tower West
Telephone: (801) 257-1900
asullivan@swlaw.com
amettler@swlaw.com

Michael D. Zimmerman (3604)
Troy L. Booher (9419)
Zimmerman J ones Booher LLC
Kearns Building, Suite 721
136 South Main Street
Telephone: (801) 924-0200
mzimmerman@zjbappeals.com
tbooher@zjbappeals.com

Attorneys for Plaintiffs/Counterclaim Defendants
Greater Park City Company and Greater Properties,
Inc.
J ames W. Quinn (pro hac vice)
Bruce S. Meyer (pro hac vice)
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8385
james.quinn@weil.com
bruce.meyer@weil.com
Plaintiffs,
vs.
UNITED PARK CITY MINES
COMPANY, a Delaware corporation, and
TALISKER LAND HOLDINGS, LLC, a
Delaware limited liability company,
TALISKER LAND RESOLUTION LLC, a
Delaware limited liability company, VR
CPC HOLDINGS, INC., a Delaware
Corporation, FLERA, LLC, a Delaware
CANYONS LEASECO LLC, a Delaware
CANYONS FINANCE CO LLC, a
Delaware limited liability company, and

[PROPOSED] ORDER GRANTING
PLAINTIFFS MOTION TO POSTPONE
OR STAY THE EFFECT AND
ENFORCEMENT OF ANY RULING
THAT MAY BE RENDERED ON
DEFENDANTS UNLAWFUL DETAINER
COUNTERCLAIM

Case No. 120500157
J udge Ryan Harris

19421949

2

J OHN DOE CORPORATIONS 1
THROUGH 10,
Defendants.
UNITED PARK CITY MINES COMPANY,
a Delaware corporation, and TALISKER
LAND HOLDINGS, LLC, a Delaware limited
liability company,


vs.



The Court has considered the Motion to Postpone or Stay the Effect and Enforcement of
Any Ruling that May be Rendered on Defendants Unlawful Detainer Counterclaim filed by
Plaintiffs/Counterclaim Defendants Greater Park City Company (GPCC) and Greater
Properties, Inc. (GPI) (collectively, Plaintiffs) and the response submitted by
Defendants/Counterclaim Plaintiffs United Park City Mines Company and Talisker Land
Holdings, LLC (collectively, Talisker). After carefully reviewing and considering the
parties written submissions and any oral argument, the Court concludes that because of the
magnitude of the impact on Plaintiffs, the inevitable negative collateral consequences
associated with an eviction, and the fact that Talisker can and will be fully compensated for any
delay, Plaintiffs should not be ordered to vacate the Leased Premises until all claims related to
Plaintiffs rights to remain on the Leased Premises are fully and completely resolved, including
resolution of any and all appeals.
Order
Based on the foregoing and for good cause appearing, the Court hereby ORDERS as
follows:
19421949

3

1. An order of restitution will not be entered or will be stayed until fourteen (14)
days from the date on which Taliskers counterclaim for unlawful detainer is
fully and finally adjudicated and subject to appeal through certification or an
appeal as of right;
2. Execution of any final, appealable judgment, including any order of restitution,
will be stayed for at least fourteen (14) days after entry to allow Plaintiffs to
obtain and post a supersedeas bond in the appropriate amount;
3. Upon approval by the Court of the supersedeas bond filed by Plaintiffs, all
proceedings will be stayed pending appeal.

DATED this _____day of _____________, 2014.

BY THE COURT:

____________________________
Honorable Ryan M. Harris
Third District J udge

19421949

4

CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of J une, 2014, I caused the foregoing [PROPOSED]
ORDER GRANTING PLAINTIFFS MOTION TO POSTPONE OR STAY THE EFFECT
AND ENFORCEMENT OF ANY RULING THAT MAY BE RENDERED ON
DEFENDANTS UNLAWFUL DETAINER COUNTERCLAIM to be served via the Courts
electronic filing system and/or U.S. mail upon the following:
J ohn R. Lund
Kara L. Pettit
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Floor
Post Office Box 4500

Howard M. Shapiro (pro hac vice pending)
J onathan E. Paikin (pro hac vice pending)
Christopher E. Babbit (pro hac vice pending)
WILMER CUTLER PICKERING HALE and DORR LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
(Via U.S. mail)

Attorneys for Defendants United Park City Mines Company;
Talisker Land Holdings, LLC; Talisker Land Resolution LLC;
and Talisker Canyons Leaseco LLC

J onathan A. Dibble
RAY QUINNEY & NEBEKER P.C.
36 South State Street, Suite 1400
Salt Lake City, UT 84111

19421949

5

Robert C. Blume (pro hac vice)
Ryan T. Bergsieker (pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1801 California Street
Denver, CO 80202-2642
(Via U.S. mail)

Attorneys for Defendant VR CPC Holdings, Inc.

Mark J ames
Hatch, J ames & Dodge, P.C.
10 West Broadway, Suite 400

Attorneys for Talisker Canyons Finance Co LLC and Flera, LLC

Michael Gill
Daniel Storino
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
(Via U.S. mail)

Of Counsel for Talisker Canyons Finance Co LLC and Flera, LLC

/s/ Patricia Haslam

EXHIBIT E
Bowshier v. Bowshier, Slip Copy (2013)
2013 WL 5314565, 2013 -Ohio- 4073
2014 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 5314565
CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF LEGAL
AUTHORITY.
Court of Appeals of Ohio,
Second District, Clark County.
Robert L. BOWSHIER, PlaintiffAppellee
v.
Teddy BOWSHIER, DefendantAppellant.
No. 2013CA33. | Decided Sept. 20, 2013.
Synopsis
Background: Landlord filed forcible entry and detainer
action. The Municipal Court, Clark County, granted writ of
restitution of property. Tenant appealed, and the Court of
Appeals, 2013 WL 425813, dismissed and remanded. On
remand, the Municipal Court rendered judgment ordering
restitution, and granted motion seeking release of appeal
bond. Tenant appealed.
Holdings: The Court of Appeals, Fain, P.J., held that:
[1] municipal court had no subject-matter jurisdiction over
tenant's foreclosure action;
[2] landlord's title to property under a recorded deed was
sufficient to support his claim against tenant for restitution of
the premises;
[3] landlord's presence at trial was not necessary and his
failure to appear did not deprive tenant of due process;
[4] magistrate's decision contained findings of fact and
conclusions of law sufficient to facilitate the trial court's
ruling;
[5] trial court's judgment of restitution was supported by
sufficient evidence; and
[6] any error in the trial court's order to release the funds from
clerk of the municipal court was harmless.
Affirmed.
West Headnotes (6)
[1] Courts
Foreclosure or Enforcement of Liens or
Mortgages
Courts
Effect of Transfer and Proceedings Had
Thereafter
Clark County Municipal Court had no subject-
matter jurisdiction over tenant's mechanic's lien
foreclosure action, and thus it could not transfer
that cause of action to the common pleas court;
pursuant to statute, only the Cleveland Municipal
Court had jurisdiction over the foreclosure of
liens upon real property. R.C. 1901.18(B).
Cases that cite this headnote
[2] Landlord and Tenant
Grounds of Action
Landlord's title to property under a recorded
deed was sufficient to support his claim
against tenant for restitution of the premises,
notwithstanding tenant's pending action against
landlord for specific performance of the alleged
land installment contract for the purchase of the
property.
[3] Constitutional Law
Eviction and Proceedings Therefor
Landlord and Tenant
Trial
Landlord's presence at trial in forcible entry and
detainer action against tenant was not necessary,
and his failure to appear did not deprive tenant
of due process; landlord's testimony regarding
leasing arrangement was unnecessary since
tenant admitted that he had an oral contract with
landlord whereby he had an obligation to pay
$589 per month, and landlord had an obligation
to allow him to occupy the premises, and he
admitted that he stopped paying $589 a month.
U.S.C.A. Const.Amend. 14.
2013 WL 5314565, 2013 -Ohio- 4073
[4] Justices of the Peace
Verdict and Findings
Landlord and Tenant
Judgment and Enforcement Thereof
Magistrate's decision in forcible entry and
detainer action was not general; it contained
findings of fact and conclusions of law
sufficient to facilitate the trial court's ruling
upon tenant's subsequent objections, and thus
it was not necessary for magistrate to make
additional findings following tenant's request.
Rules Civ.Proc., Rule 53(D)(3)(a)(ii).
[5] Landlord and Tenant
Weight and Sufficiency of Evidence
Trial court's judgment of restitution in forcible
entry and detainer action brought by landlord
against tenant was supported by sufficient
evidence; tenant did not dispute that landlord
was the record owner of the garage or that he
remained on the property despite having stopped
paying landlord the $589 per month that he had
been paying pursuant to the terms of their oral
contract.
[6] Justices of the Peace
Harmless Error
Any error in the trial court's order to release
the funds from clerk of the municipal court was
harmless; the order to release the funds tenant
deposited with the clerk to landlord could not
have prejudiced tenant since the funds were
being applied towards the rent that he failed to
pay, which exceeded the funds on deposit.
(Civil Appeal from Clark County Municipal Court).
Attorneys and Law Firms
Edwin A. Grinvalds, Urbana, OH, for plaintiff-appellee.
Wilfred L. Potter, Springfield, OH, for defendant-appellant.
Opinion
FAIN, P.J.
*1 { 1} Defendant-appellant Teddy Bowshier appeals from
a judgment of the Clark County Municipal Court ordering
restitution of the premises, formerly a commercial garage,
located at 6 Vanada, in Springfield. The premises were
ordered restored to the possession of plaintiff-appellee Robert
L. Bowshier, Teddy Bowshier's uncle.
1
{ 2} Teddy contends that the trial court erred by failing to
sustain his motion to transfer this case to the Clark County
Common Pleas Court; that the trial court deprived him of due
process by hearing this case in Robert's absence (who was
represented by counsel at the hearing); that the magistrate
erred by failing to grant Teddy's request for findings of fact
and conclusions of law; that the judgment is not supported
by the evidence, and is against the manifest weight of the
evidence; and that the trial court erred when it released escrow
funds that he had deposited with the clerk of the trial court
as ordered by the court of appeals as a condition of its order
staying the judgment pending a prior appeal. We find no merit
to any of Teddy's contentions. Therefore, the judgment of the
trial court is Affirmed.
I. A Garage Becomes the Subject of a Family Dispute
{ 3} The property that is the subject of this litigation is
a commercial garage that was built by Robert's father for
Teddy's father, now deceased, in 1962. It was operated as the
West End Body Shop. At some point, the garage became the
property of Betty L. Bowshier, now deceased, the mother of
Robert Bowshier.
{ 4} In 2008, Betty Bowshier gave her son Robert a general
power of attorney. Using that power of attorney, Robert
conveyed the garage to himself by a general warranty deed,
recorded in May 2009.
{ 5} In May 2010, Robert and Teddy entered into a
transaction concerning the garage, which was in poor
2013 WL 5314565, 2013 -Ohio- 4073
condition. They disagree as to the nature of that transaction.
According to Teddy, Robert agreed orally to sell him the
garage for $25,000, with monthly payments of $589 over
about a five-year time span. Teddy testified that Terry
Bowshier, Robert's son, came to him with a written land
contract, and told Teddy that Robert wanted a $2,500 down
payment. Teddy did not have $2,500. At that time, he talked
to Robert, and, according to Teddy, Robert agreed that Teddy
could either pay the $2,500 at some time during the five-year
life of the contract, or pay extra monthly payments at the end
of the five years to cover the $2,500. According to Teddy,
he saw the written contract at that time, but because he was
unable to pay the $2,500, he was not allowed to keep it, or
a copy.
{ 6} According to Robert, the transaction was a straight
lease, with monthly rental payments in the amount of $589.
{ 7} Teddy paid $589 a month, and did a lot of work on
the garage. According to Teddy, the work included cleaning,
power washing, plumbing, electrical, the installation of a new
furnace, and the installation of new toilets. Twenty sheets of
drywall were installed.
*2 { 8} According to Teddy, in November 2011 he
became aware, for the first time, that Robert viewed the $589
payments as rent, not installment payments on a land contract.
Teddy, who had moved into the garage in May 2011, stopped
making the payments. This litigation ensued.
II. The Course of Proceedings
{ 9} Robert brought this action in forcible entry and detainer
in February 2012, in the Clark County Municipal Court,
claiming that Teddy was a commercial tenant on an oral
month-to-month lease, that Teddy had failed to pay the rent
due, and that Robert had served Teddy with a written notice
to leave the premises on February 10, 2012.
{ 10} Teddy filed an answer and counterclaim. In it, he
claimed that he had entered into a land contract with Robert
for the sale of the property, that in reliance upon that contract,
he had made improvements and repairs totaling $18,000,
and had paid installment payments totaling $10,600. He
recited that he had filed a mechanic's lien upon the garage
in the office of the Clark County Recorder in the amount
of $28,600. Teddy also claimed that the transfer of the title
to the property to Robert was void, because Robert had
unlawfully used a power of attorney to transfer the property
from Betty Bowshier to himself. Teddy sought foreclosure of
his mechanic's lien, and an order of specific performance of
the land contract.
{ 11} Teddy then moved to transfer the cause of action
to the Clark County Common Pleas Court, contending that
his counterclaim exceeded the jurisdictional amount of the
municipal court, and also involves the title to real property
which can only be done by the court of Common Pleas.
{ 12} The affidavit of Shawn Bowshier was filed in the
municipal court. In it, Shawn Bowshier averred that he was
the manager of the property for Robert, that Teddy was a
commercial tenant of the property, that Teddy violated the
terms of the oral lease by failing to pay rent, that the notice
to leave the premises had been served upon Teddy, and that
$1,917 was due as unpaid rent and late fees as of January 31,
2012.
{ 13} At the request of the trial court, both parties filed
memoranda on the issue of the municipal court's jurisdiction.
{ 14} The cause was heard before a magistrate on April
4, 2012. Counsel for both parties were present. Robert,
who resides in Florida, was not present. At the outset of
the hearing, the averments in Shawn Bowshier's affidavit
were read into the record by the trial court, without
objection. Robert's counsel stated on the record that: It's my
understanding that Mr. Potter (Teddy's trial counsel) is not
contesting the fact that there's been no payments of money
since the end of November.Teddy's counsel did not take
exception to that statement.
{ 15} Robert did not offer any witnesses at the hearing.
Teddy presented three witnesses, including himself.
{ 16} Thirteen days after the hearing, the magistrate
rendered a three-page decision, concluding that Robert was
entitled to restitution of the premises, and recommending that
a writ of restitution be issued effective April 30, 2012. A week
later, Teddy requested findings of fact and conclusions of law.
Eight days thereafter, the magistrate rendered a decision that:
The Magistrate's Findings of Fact and Conclusions of Law
are contained within the Magistrate's Decision, which was
filed on April 17, 2012.
*3 { 17} On May 4, 2012, the trial court approved
and adopted the magistrate's decision. Teddy filed a timely
2013 WL 5314565, 2013 -Ohio- 4073
objection. In response on the objection, the trial court found
that Teddy had an oral month-to-month lease of the premises,
and had failed to pay rent. The trial court ordered the
immediate issuance of a writ of restitution. Teddy appealed.
{ 18} During the pendency of this appeal, we stayed
execution of the judgment on condition that bond in a monthly
amount of $650 be paid either into an escrow or trust account
in the names of the parties' counsel, or posted with the clerk
of the Clark County Municipal Court. It appears that the latter
alternative was chosen.
{ 19} We dismissed that appeal, and remanded the cause to
the trial court, finding that the trial court had neither addressed
Teddy's objections, nor allowed him the full 30 days allowed
by Civ.R. 53(D)(3)(b)(iii) for the filing of a transcript in
support of objections. Bowshier v. Bowshier, 2d Dist. Clark
No.2012 CA 40, 2013Ohio297, 3540.
{ 20} On remand, the trial court rendered judgment ordering
restitution, finding that Teddy had an oral month-to-month
lease, and had violated the terms of that lease.
{ 21} Robert moved to release the monies deposited with
the clerk of the Clark County Municipal Court, which then
totaled $4,550, to himself or his attorney. A hearing date was
set for this motion. Teddy's motion to continue the hearing
was overruled. Neither Teddy nor his attorney was present at
the hearing. The trial court, noting that Teddy had not filed
any written opposition to the motion, sustained the motion
and ordered the monies released to Robert and his counsel.
{ 22} From the judgment of restitution and from the order
releasing the appeal bond, Teddy appeals.
III. The Trial Court Did Not Err by Failing to
Transfer this Cause to the Common Pleas Court
{ 23} Teddy's First Assignment of Error is as follows:
THE MAGISTRATE ERRED AS A
MATTER OF LAW WHEN HE DID
NOT TRANSFER THIS CASE TO
COMMON PLEAS COURT.
A. The Trial Court Had No SubjectMatter Jurisdiction
Over Teddy's Mechanic's Lien Foreclosure Action;
Therefore, it Lacked Jurisdiction to Transfer
that Cause of Action to the Common Pleas Court
[1] { 24} Teddy's first argument in support of this
assignment of error is that his mechanic's lien foreclosure
cause of action, exceeding the jurisdictional monetary limit
of the municipal court, should have resulted in the transfer of
this case to the common pleas court.
{ 25} * * * [T]he term exceeding the jurisdiction of
a court, when couched in monetary terms, is substantially
different than that created by filing an action in a court that
is totally without jurisdiction. * * *. We conclude that a
complaint or counterclaim based on libel or slander in a
court without jurisdiction of the subject matter is properly
subject only to a motion to dismiss and not to a motion to
[transfer].Lin v. Reid, 11 Ohio App.3d 232, 236, 464 N.E.2d
189 (10th Dist.1983).
*4 { 26} In the case before us, the Clark County Municipal
Court had no subject-matter jurisdiction over a foreclosure
action. The General Assembly has seen fit to confer upon the
Cleveland Municipal Court jurisdiction over the foreclosure
of liens upon real property, but only the Cleveland Municipal
Court. R.C.1901.18(B). Because the General Assembly found
it necessary to provide expressly for a grant of foreclosure
jurisdiction to the Cleveland Municipal Court, we conclude
that the jurisdiction to foreclose liens upon real property is
not part of the jurisdiction conferred upon municipal courts
generally. See Swarts v. Purdy, 2 Ohio Misc. 176, 177, 207
N.E.2d 806 (Cincinnati Mun.Ct.1964).
{ 27} Because the Clark County Municipal Court lacked
subject-matter jurisdiction over Teddy's cause of action for
the foreclosure of his mechanic's lien, it did not err in failing
to sustain his motion to transfer that cause of action, along
with the case, generally, to the Clark County Common Pleas
Court.
{ 28} Teddy also argues that he had a claim for unjust
enrichment that exceeded the jurisdictional monetary limit of
the Clark County Municipal Court, but we find no claim for
unjust enrichment set forth in his answer and counterclaim.
B. Title to Property Under a Recorded Deed Is Sufficient
to Support a Claim for Restitution of the Premises,
Notwithstanding the Existence of an Issue as to Title
2013 WL 5314565, 2013 -Ohio- 4073
[2] { 29} Teddy next argues that the Clark County
Municipal Court should have transferred this cause to the
Clark County Common Pleas Court because he has raised
two issues concerning the title to the property. The first of
these is his claim for specific performance of the alleged land
installment contract for the purchase of the property, whereby
he claims that he has an equitable interest in the property.
The second of these is his claim that Robert's title is invalid,
because Robert's use of Betty Bowshier's power of attorney
to transfer the property from her to Robert was not permitted.
{ 30} As to the latter contention, although Teddy contends
that Robert's recorded deed is void, the authority he relies
upon holds merely that a recorded deed based upon the
grantee's exercise of a power of attorney from the grantor is
voidable, not void. Montgomery v. Mosley, 4th Dist. Pike No.
448, 1990 WL 127047, *1 (Aug. 24, 1990), quoted, but not
cited, in Teddy's appellate brief.
{ 31} When Teddy filed his appellate brief in this court,
no action was pending in another court involving title to the
garage. Recently, we have been provided with certified copies
of an action that Jack Bowshier, Robert's brother, filed July
19, 2013, in the Clark County Common Pleas Court, Probate
Division, in which Robert's title to the property is challenged
on the basis of Robert's self-dealing use of Betty Bowshier's
power of attorney to transfer the title to himself. Upon the
Probate Court's order to show cause why the complaint should
not be dismissed for lack of jurisdiction, Jack Bowshier
moved to transfer that cause of action to the General Division
of the Clark County Common Pleas Court. He also moved to
consolidate that cause of action with the cause of action in
the Clark County Municipal Court with which this appeal is
concerned. The Probate Court, by order filed August 5, 2013,
transferred the cause to the General Division of the Common
Pleas Court, but did not order consolidation of that cause of
action with the restitution action pending in the Clark County
Municipal Court.
*5 { 32} In any event, a municipal court is not only not
required to transfer an action in forcible entry and detainer
to a common pleas court when there is an issue concerning
the title, it is not permitted to do so, so long as the plaintiff
is the owner of record. To allow the Municipal Court the
discretion to stay proceedings in this cause would be to
defeat the purpose of the forcible entry and detainer statutes
(i.e., immediate possession), to permit their circumvention
by merely bringing title into question in a collateral suit
in common pleas court, and to deny through successive
appeals the relief they were intended to provide.State, ex rel.
Carpenter v. Warren Municipal Court, 61 Ohio St.2d 208,
210, 400 N.E.2d 391 (1980).See also Haas v. Gerski, 175
Ohio St. 327, 330, 194 N.E.2d 765 (1963): Since the forcible
entry and detainer action relates only to present possession
and not title, the fact that another action is pending relating
to the issue of title does not constitute a bar to the action in
forcible detainer.Were appellee not permitted to prove his
right to possession by proving his record title, the forcible
entry and detainer statute would have little meaning.Id., at
331, 194 N.E.2d 765.
{ 33} The trial court did determine that the oral contract
between the parties was a lease, not a land installment
contract. But this was incidental to its determination that
Teddy was in violation of his contractual obligation to pay
rent, as a result of which Robert, the owner of record, was
entitled to restitution of the premises. The trial court had no
jurisdiction to adjudicate, and did not adjudicate, the attacks
upon Robert's title.
C. Ryan v. Kenley Is Distinguishable
{ 34} Teddy relies upon Ryan v. Kenley, 2d
Dist. Montgomery No. 10534, 2003Ohio2088, for the
proposition that where the title to the premises is placed in
question, a municipal court is without jurisdiction to hear
a forcible entry and detainer action. In that case, a county
district court in a forcible entry and detainer action had
concluded that the defendant was the equitable owner of
the property, despite the undisputed fact that the plaintiff
was the owner of record. We concluded that the county
district court had exceeded its jurisdiction when it adjudicated
the defendant's claim to equitable title to the property, and
reversed the judgment. Id. 14, 18.
{ 35} In Ryan, a quiet title action was pending in the common
pleas court when the county district court rendered judgment.
Id. 7. In the interests of judicial economy, we remanded
the forcible entry and detainer cause of action to the county
district court with a special mandate to * * * refer the forcible
entry and detainer claims and defenses to the common pleas
court for its determination in the quiet title action.Id. 17,
18.
{ 36} In the case before us, considerations of judicial
economy militate against the referral of the forcible entry
and detainer cause of action to the Clark County Common
2013 WL 5314565, 2013 -Ohio- 4073
Pleas Court in which Jack Bowshier's challenge to Robert's
recorded title is now pending. Our affirmance of the trial
court's order of restitution makes that a final adjudication of
the forcible entry and detainer cause of action. The challenge
to Robert's recorded title to the property was filed in the
Probate Division of the Clark County Common Pleas Court
on July 19, 2013, and was transferred to the General Division
on August 5, 2013. Unlike the quiet title action in Ryan,
which had been pending when the county district court in that
case rendered judgment, before the appeal was even filed, the
action involving the title to the property in the case before us is
only now getting under way. And there had been no judgment
of restitution in Ryan, so that it made sense to consolidate the
forcible entry and detainer cause of action with the quiet title
action pending in the common pleas court. In the case before
us, by contrast, to order the transfer the forcible detainer cause
of action to the common pleas court would necessarily delay
the already completed adjudication of that cause of action,
and that delay is forbidden by State, ex rel. Carpenter v.
Warren Municipal Court and Haas v. Gerski, supra.
*6 { 37} There is language in Ryan v. Kenley suggesting
that a municipal court may not decide a forcible entry
and detainer claim when the action involves issues that the
municipal court does not have jurisdiction to determine. Ryan,
at 16. We consider this to be dictum, since Ryan involved a
situation where the municipal court had actually adjudicated
the challenge to the plaintiff's recorded title to the property,
holding that the defendant had equitable title. In the case
before us, the challenges to Robert's recorded title to the
property remain unadjudicated.
{ 38} Teddy's First Assignment of Error is overruled.
IV. Robert's Failure to Appear at the Hearing Did Not
Deprive Teddy of Due Process of Law
{ 39} Teddy's Second Assignment of Error is as follows:
THE TRIAL COURT DEPRIVED
APPELLANT OF DUE PROCESS
OF LAW BY PROCEEDING TO
TRIAL WITHOUT APPELLEE AND
UTILYZING EXTRA JUDICIAL
EVIDENCE TO MAKE A
DECISION.
[3] { 40} In Robert, who resided in Florida, did not appear
at the April 4, 2012 evidentiary hearing before the magistrate.
He was represented by counsel at the hearing.
{ 41} Teddy contends that Robert's failure to appear
deprived him of his right to confront and cross-examine
Robert. As Robert notes, Teddy did not subpoena Robert as a
witness at the hearing. Nor did Teddy object when it became
apparent, at the outset of the hearing, that Robert was not
going to be there.
{ 42} Teddy cites Heard v. Sharp, 50 Ohio App.3d 34, 552
N.E.2d 665 (8th Dist.1988) for the proposition that a trial
court does not abuse its discretion by dismissing a plaintiff's
complaint with prejudice for failure to prosecute where the
plaintiff fails to appear, without explanation, at a properly
scheduled trial.That case involved an action in tort in which
the plaintiff alleged that the defendant had hit him over the
head with an iron crowbar. Id. Plaintiff's counsel, theorizing
that injuries to the plaintiff's head had caused him to forget
the trial date, asked for a continuance. Id., at 35, 552 N.E.2d
665. The trial court denied the request for a continuance, and
dismissed the action for want of prosecution. Id.
{ 43} In Heard, it was apparent that the plaintiff had no
way of proving his cause of action without his own testimony
that the defendant had hit him over the head. Given that
circumstance, we agree that it was not an abuse of discretion
for the trial court to have dismissed the cause of action. In
the case before us, by contrast, the averments in the affidavit
of Shawn Bowshier, Robert's manager of the property, which
had previously been filed in the action, were read into the
record at the outset of the hearing, without objection by
Teddy. These averments included that Teddy had become a
commercial tenant of Robert at the premises, that the rent was
$589 a month, that the rent had not been paid, and that an
amount in excess of $1,917 was due for unpaid rent and late
fees as of January 31, 2012.
*7 { 44} During the hearing, Teddy admitted that he had
an oral contract with Robert whereby he had an obligation
to pay $589 per month, and Robert had an obligation to
allow Teddy to occupy the premises. The factual dispute
was whether this contract was a lease or a land installment
contract. Teddy further admitted that he stopped paying $589
a month in November, 2011. Under these circumstances,
which are different from those in Heard, Robert's presence at
the hearing was not necessary to prove his case for forcible
entry and detainer. Teddy did not dispute that Robert was the
owner of record. If Teddy had any right to possession of the
premises, it must have devolved from the oral land contract
that Teddy attempted, unsuccessfully, to prove to the trial
2013 WL 5314565, 2013 -Ohio- 4073
court's satisfaction, or from the lease that Robert claimed to
exist, in which event, the rent was admittedly unpaid. Without
one or the other, Teddy had no right to possession of the
premises.
{ 45} Teddy does not specify the extra judicial evidence
referred to in his assignment of error. If it is Shawn Bowshier's
affidavit, that affidavit appears to have been received in
evidence without objection by Teddy.
{ 46} Teddy's Second Assignment of Error is overruled.
V. The Magistrate Did Not Err When He Failed
to Provide Findings of Fact and Conclusions of
Law Additional to those Contained in his Decision
{ 47} Teddy's Third Assignment of Error is as follows:
THE MAGISTRATE ERRED AS
A MATTER OF LAW WHEN HE
DID NOT RESPOND TO REQUEST
FOR FINDINGS OF FACT AND
CONCLUSIONS OF LAW.
[4] { 48} After the magistrate's decision, Teddy requested
findings of fact and conclusions of law, under the authority
of Civ.R. 53(D)(3)(a)(ii), which provides that a magistrate's
decision may be general unless findings of fact and
conclusions of law are timely requested by a party * * *.
In response, the magistrate filed a decision stating that: The
Magistrate's Findings of Fact and Conclusions of Law are
contained within the Magistrate's Decision, which was filed
on April 17, 2012.
{ 49} The magistrate rendered a three-page, single-spaced
decision outlining the facts, and finding that the Defendant
has failed to prove by clear and convincing evidence that there
was an oral land contract.The magistrate found instead that
Teddy had an oral month-to-month lease, was in default for
rent, was served with a notice to vacate, and had failed to
vacate.
{ 50} In arriving at these ultimate conclusions of fact,
and after reciting the Shawn Bowshier affidavit and Teddy's
testimony, the magistrate made the following findings in his
original decision:
The fact that the Defendant improved
the property by making necessary
repairs in order to use the building
in his commercial venture is not
indicative that he was purchasing
the property rather than leasing.
Furthermore, by his own testimony
the Defendant was presented with a
written land contract that Plaintiff's
agent refused to execute without
payment of the $2,500 down payment.
Moreover, the Defendant labeled one
of his payments as G rent (see
Defendant's exhibit 2).
*8 { 51} We agree with the magistrate that his original
decision was not general within the meaning of Civ.R.
53(D)(3)(a)(ii); it contained findings of fact and conclusions
of law sufficient to facilitate the trial court's ruling upon
Teddy's subsequent objections. No additional findings of fact
and conclusions of law were required.
{ 52} Teddy's Third Assignment of Error is overruled.
VI. The Evidence in the Record Is Sufficient
to Support the Judgment, and Is Not
Against the Manifest Weight of the Evidence
{ 53} Teddy's Fourth Assignment of Error is as follows:
THE DECISION OF THE
MAGISTRATE WAS BASED UPON
INSUFFUCIENT [sic] EVIDENCE
AND WAS AGAINST THE
MANIFEST WEIGHT OF THE
EVIDENCE.
[5] { 54} This appeal is taken from the judgment of the
trial court, not from the magistrate's decision, which, being
interlocutory, is not a final appealable order. Consequently,
although Teddy casts this assignment of error in terms of the
magistrate's decision, the actual issue for this court is whether
the judgment of restitution is not supported by the evidence,
or is against the manifest weight of the evidence.
{ 55} Teddy did not dispute that Robert was the record owner
of the garage; nor did he dispute that he remained on the
2013 WL 5314565, 2013 -Ohio- 4073
property despite having stopped paying Robert the $589 per
month that he had been paying pursuant to the terms of their
oral contract. These facts were set forth in Shawn Bowshier's
affidavit, which was received in evidence at the hearing
without objection. These uncontroverted facts, alone, were
sufficient to support the order of restitution, unless, arguably,
Teddy had an oral contract with Robert for the purchase of
the property. On that issue, Teddy had the burden of proof
by clear and convincing evidence. Thus, the judgment of
restitution is supported by sufficient evidence.
{ 56} Teddy cites a number of cases from this court for the
proposition that the task of an appellate court, in conducting
a weight-of-the-evidence review, is to review the entire
record, weigh all of the evidence and all the reasonable
inferences, consider the credibility of the witnesses and
determine whether in resolving conflicts in the evidence,
the fact finder clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.State v. Dossett, 2d Dist.
Montgomery No. 20997, 2006Ohio3367, 32. Only in
exceptional cases, where the evidence weighs heavily against
the [judgment], should an appellate court overturn the trial
court's judgment.Id.
{ 57} Furthermore, as Teddy notes, the credibility of the
witnesses and the weight to be given to their testimony are
primarily matters for the trier of facts to resolve. State v.
Gaddis, 2d Dist. Montgomery No. 24007, 2011Ohio2822,
62.
{ 58} We have reviewed the transcript of the hearing before
the magistrate, and we conclude that the judgment is not
against the manifest weight of the evidence.
*9 { 59} Russell Mitchem testified in Teddy's behalf.
He testified that he could hear Teddy's end of a telephone
conversation that Teddy had with Robert in Florida:
Q. Did you hear Teddy make uh any statements about
whether he was buying or renting the garage?
A. Well, yeah, he said he needed some paperwork drawed
up so what's happening now wouldn't be happening now.
{ 60} Later, Mitchem testified, on direct examination:
Q. Do you know how Teddy paid the rent?
A. He paid it, uh, money order and mailed it to Bob.
{ 61} On cross-examination, Mitchem testified that although
he could not hear Robert's end of this telephone conversation,
at one point Mitchem took the phone to talk to Robert:
A. Well I said how you doin' Bob. It's
been a long time since I've heard from
ya, you know, and he said yeah, and he
asked me how I was doin' and I told
him and I ask him how he was and
he told me and then I mentioned that
Teddy really appreciates you selling
him the garage so he can do his
upholstering business there and he said
yeah, that's, I wanted to keep it in the
family and that was the end of the
conversation.
{ 62} Finally, on re-direct, Mitchem testified:
Q. And he indicated to you that he was selling that garage
to uh Teddy Bowshier?
A. Right, when I said Teddy appreciates you selling him
that garage, he said yeah, I want to keep it in the family.
Q. Did he tell you how, what the terms of the, uh ...
A. No, he never got into no money or nothing. I never got
into the, that detail, that far into it.
{ 63} Jean Arthur, who had been living with Teddy for nine
years, testified for him. She testified that Robert had told her
he was selling the garage to Teddy. On cross-examination,
she acknowledged that she did not know the purchase price,
just that Teddy was to pay Robert $589 per month. She also
acknowledged that Teddy wrote G rent on one of the money
orders used to pay the $589 per month. A copy of this money
order, along with others, was admitted as an exhibit at the
hearing. She further acknowledged that none of the money
orders reflected that they were for payment on a land contract.
{ 64} Teddy Bowshier also testified in his own behalf. He
testified that he had an oral contract to purchase the garage
for $25,000, and that he never would have paid to repair and
improve the property if he was merely leasing it, without a
contract to purchase. Concerning the money order with G
rent written on it, Teddy testified: That [writing] might be,
be mine, but I doubt it. She [Jean Arthur] took care of all this,
money orders.
2013 WL 5314565, 2013 -Ohio- 4073
{ 65} In summary, there is evidence in the record from
which the trial court might have found that Teddy had an
oral contract to purchase the garage, but it did not make that
finding, by clear and convincing evidence. We were not there
to see and hear the witnesses. We conclude that this is not the
exceptional case where the fact finder lost its way, resulting
in a miscarriage of justice.
*10 { 66} Teddy's Fourth Assignment of Error is overruled.
VII. If the Trial Court Erred in Ordering the Release to
Robert of the Funds Deposited During the Pendency of
the First Appeal, that Error Was Harmless, Since Teddy
Was Not Prejudiced Thereby, Having Been Credited
in that Amount with Payment of the Unpaid Rent
{ 67} Teddy's Fifth Assignment of Error is as follows:
THE TRIAL COURT ERRED AS
A MATTER OF LAW WHEN
IT RELEASED THE ESCROW
FUNDS DEPOSITED PURSUANT
TO COURT OF APPEALS ORDER.
[6] { 68} When this cause of action was first on appeal
to this court, until we dismissed that appeal, we stayed the
execution of the restitution order, subject to the condition that
Teddy deposit $650 per month either into an escrow account
controlled by counsel for both parties, jointly, or with the
clerk of the municipal court. It appears that the latter option
was chosen.
{ 69} After the trial court's judgment of restitution on
remand from this court, Robert moved for the release of
the funds deposited with the clerk of the court, which then
totaled $4,550. Following a hearing at which Teddy failed
to appear,
2
the trial court ordered the release of the funds
then totaling $5,200to Robert, finding that he was entitled
to the unpaid rent for the property, and that the amount of
rent due exceeded $5,200. Implicit in the trial court's decision
releasing the funds was that they represented unpaid rent, and
that Teddy would be credited with the payment of rent in that
amount.
{ 70} Teddy argues that the trial court was without the
jurisdictional power to release the funds held by its clerk of
court. We disagree. A trial court has the jurisdictional power
to issue orders to its officers.
{ 71} At most, it might have been error for the trial court to
have released the funds. We need not decide whether the trial
court erred in this regard, because even if its order to release
the funds was error, that error would be harmless. The order
to release the funds Teddy deposited with the clerk cannot
have prejudiced him, because they are being applied towards
the rent that Teddy has failed to pay, which exceeds the funds
on deposit. And Teddy is being credited with the payment of
rent in that amount.
{ 72} Teddy's Fifth Assignment of Error is overruled.
VIII. Conclusion
{ 73} All of Teddy's assignments of error having been
overruled, the judgment of the trial court is Affirmed.
DONOVAN and HALL, JJ., concur.
Parallel Citations
2013 -Ohio- 4073
Footnotes
1
We will refer to the plaintiff-appellee as Robert, and to the defendant-appellant as Teddy.
2
Teddy moved for a continuance of this hearing, but his motion was overruled.
End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.
Halajian v. Deutsche Bank Nat. Trust Co., Not Reported in F.Supp.2d (2013)
2013 WL 593671
2013 WL 593671
Only the Westlaw citation is currently available.
United States District Court,
E.D. California.
Barry HALAJIAN, an individual, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for Gsamp Trust 2005HE4, Mortgage
PassThrough Certificates, Series 2005HE4,
a New York Corporation; JP Morgan Chase
Bank N.A., a national banking association
incorporated in New York; NDEx West LLC,
a Delaware limited liability company; and
Whitney K. Cook, an individual residing in Ohio;
All Persons Known or Unknown Claiming an
Interest in 4917 E. Sooner Dr., Fresno, California
93727; and Does 120 inclusive, Defendants.
No. 1:12CV00814 AWI GSA. | Feb. 14, 2013.
Randy Risner, Law Office Of Randy Risner, Fresno, CA, for
Plaintiff.
Kristapor Vartanian, Laurie Hoefert Selkowitz, Mark
Leonard Block , Natasha S. Ahmed, Wargo & French LLP,
Los Angeles, CA, for Defendants.
Opinion
ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS TO DISMISS
ANTHONY W. ISHII, Senior District Judge.
*1 Plaintiff, acting through counsel, brings a second action
before this Court seeking injunctive relief, declaratory relief,
and damages relating to real property at 4917 East Sooner
Ave, Fresno, California. (See 1:12cv00798LJOSMS.)
Plaintiff seeks to enjoin his eviction from his Fresno County
residence (property) after a trustee's sale from the property
by bringing six causes of action: (1) a violation of California
Civil Code section 2923.5, (2) Wrongful Foreclosure, (3)
Lack of Privity of Contract, (4) Quiet Title, (5) Fraud and (6)
Declaratory and Injunctive Relief.
Defendants Deutsche Bank National Trust Company and
Whitney K. Cook have filed motions to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)
(6). Defendants and Plaintiff both provided documents to the
Court in support of their pleadings of which the Court has
taken judicial notice.
For the reasons stated herein, the Court grants in part and
denies in part Defendants' Motions to Dismiss for failure to
state a viable claim.
I.
BACKGROUND
1
On May 18, 2005, Halajian borrowed $175,200.00 from
lender Fremont Investment & Loan, signing an adjustable-
rate note in which he promised to repay the lender no
later than June 1, 2035. The loan was secured by a
deed of trust for Halajian's property at 4917 East Sooner
Avenue, Fresno, California. Halajian agreed to the terms
and covenants of the deed of trust, executing it at the
same time as the note. The deed of trust named Fremont
General Credit Corporation as the Trustee, and designated
Mortgage Electronic Registration Systems, Inc., (MERS) as
the nominee for Fremont Investment & Loan, its successors
and assigns, to serve as the beneficiary of the deed of trust.
On June 28, 2010, Mortgage Electronic Registration Systems,
Inc., as nominee for Fremont Investment & Loan, assigned
to Deutsche Bank National Trust Company, as Trustee
for GSAMP Trust 2005HE4, Mortgage PassThrough
Certificates, Series 2005HE4, all beneficial interest in the
deed of trust and note executed by Halajian.
On May 17, 2010, ServiceLink, a Division of Chicago Title
Company, on behalf of Chase Home Finance, L.L.C., and
its agent NDEX West, LLC, filed a notice of default and
intention to sell the property as a result of Halajian's failure
to make required loan payments beginning February 1, 2010,
and thereafter.
On March 7, 2011, Deutsche Bank filed an unlawful detainer
action against Halajian in Fresno County Superior Court
(Case No. 11CECL01998).See Deutsche Bank Nat'l Trust Co.
v. Halajian, 2012 WL 1076218 at *1 (E.D.Cal. March 29,
2012) (No. 1:12cv00447LJOGSA).
2013 WL 593671
On April 28, 2011, Deutsche Bank moved for summary
judgment in the unlawful detainer action; Halajian did not
oppose the motion. Id. The Superior Court granted the motion
and entered judgment on May 5, 2011. Id. A writ of execution
for restitution of the property issued on June 2, 2011. Id. On
June 10, 2011, Halajian moved to set the judgment aside or,
in the alternative, stay execution of judgment. Id. On June
13, 2011, the Superior Court denied the motion to set aside
the judgment but stayed the writ of execution. Id. After a
second motion to set aside the judgment was denied, Halajian
appealed to the state appellate court on June 20, 2011. Id. On
June 22, 2011, Halajian moved to stay enforcement of the
judgment pending appeal. Id. On June 28, 2011, the Superior
Court granted the motion to stay.
*2 Halajian filed a new appeal on October 26, 2011. Id.
On February 27, 2012, Deutsche Bank filed another unlawful
detainer complaint against Halajian (12CECL01530).Id. On
March 23, 2012, Halajian removed the case to federal court
(Case No. 1:12cv00447LJOGSA).Id. The District Court
remanded the action to Fresno County Superior Court on
April 17, 2012.
2
On or about May 10, 2012, the Fresno
County Superior Court entered judgment in favor of Deutsche
Bank. Doc. 132.
On May 15, 2012, Halajian filed a complaint in propria
persona with the District Court against Deutsche Bank
National Trust Co., NDEX West LLC, JP Morgan Chase
Bank N.A., and Whitney K. Cook. Halajian v. Deutsche Bank
Nat'l Trust Co. (Case No. 1:12cv00798LJOSMS). On
May 31, 2012 the District Court, on its own motion, dismissed
with prejudice Halajian's complaint, calling the pleading an
ill-conceived attempt at legal sleight of hand.Id. Doc.2.
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a claim
may be dismissed because of a plaintiff's failure to state
a claim upon which relief can be granted.A Rule 12(b)
(6) dismissal is proper where there is either a lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir.1988); see also
Graehling v. Village of Lombard, Ill. ., 58 F.3d 295, 297 (7th
Cir.1995).When a federal court reviews the sufficiency of
a complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a limited one.
The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims.Scheurer v. Rhodes, 416 U.S. 232, 236,
94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gilligan v. Jamco
Development Corp., 108 F.3d 246, 249 (9th Cir.1997).[A]
complaint should not be dismissed unless it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.Hartford Fire
Insurance Co. v. California, 509 U.S. 764, 811, 113 S.Ct.
2891, 125 L.Ed.2d 612 (1993).
The court must also assume that general allegations embrace
those specific facts that are necessary to support the
claim.Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110
S.Ct. 3177, 111 L.Ed.2d 695 (1990). Thus, the determinative
question is whether there is any set of facts that could
be proved consistent with the allegations of the complaint
that would entitle plaintiff to some relief. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d
1 (2002). However, courts will not assume that plaintiffs
can prove facts which [they have] not alleged, or that the
defendants have violated ... laws in ways that have not
been alleged.Associated General Contractors of California,
Inc. v. California State Council of Carpenters, 459 U.S.
519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Further,
although they may provide the framework of a complaint,
legal conclusions are not accepted as true and [t]hreadbare
recitals of elements of a cause of action, supported by mere
conclusory statements, do not suffice.Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 194950, 173 L.Ed.2d 868
(2009); see also Warren v. Fox Family Worldwide, Inc. ., 328
F.3d 1136, 1139 (9th Cir.2003).
*3 In deciding whether to dismiss a claim under Rule
12(b)(6), the Court is generally limited to reviewing only
the complaint. There are, however, two exceptions ... First,
a court may consider material which is properly submitted
as part of the complaint on a motion to dismiss.... If the
documents are not physically attached to the complaint,
they may be considered if the documents' authenticity is
not contested and the plaintiff's complaint necessarily relies
on them. Second, under Fed.R.Evid. 201, a court may take
judicial notice of matters of public record.Lee v. City of Los
Angeles, 250 F.3d 668, 68889 (9th Cir.2001). The Ninth
Circuit later gave a separate definition of the incorporation
2013 WL 593671
by reference doctrine, which permits us to take into account
documents whose contents are alleged in a complaint and
whose authenticity no party questions, but which are not
physically attached to the plaintiff's pleading.Knievel v.
ESPN, 393 F.3d 1068, 1076 (9th Cir.2005). Moreover,
judicial notice may be taken of a fact to show that a
complaint does not state a cause of action.Sears, Roebuck
& Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70
(9th Cir.1956); see Estate of Blue v. County of Los Angeles,
120 F.3d 982, 984 (9th Cir.1997).
3
[A] court may not look
beyond the complaint to a plaintiff's moving papers, such
as a memorandum in opposition to a defendant's motion to
dismiss. Facts raised for the first time in opposition papers
should be considered by the court in determining whether
to grant leave to amend or to dismiss the complaint with or
without prejudice .Broam v. Bogan, 320 F.3d 1023, 1026 n.
2 (9th Cir.2003), citations omitted.
If a Rule 12(b)(6) motion to dismiss is granted, claims may
be dismissed with or without prejudice, and with or without
leave to amend.[A] district court should grant leave to amend
even if no request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by
the allegation of other facts. Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir.2000) (en banc) (quoting Doe. v. United States,
58 F.3d 494, 497 (9th Cir.1995)). In other words, leave to
amend need not be granted when amendment would be futile.
Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002).
III.
DISCUSSION
The first basis of Plaintiff's complaint is his assertions
that Defendants Deutsche Bank and JPMorgan Chase Bank
are not true creditors of Plaintiff because the loan in
question was securitized and therefore have no right to
assign, substitute or foreclose upon the loan. (Complaint
87.) Second, Plaintiff asserts that the assignment and
substitution of trustee were invalid due to an absence
of agency relationship between Ms. Cook and MERS or
Deutsche Bank National Trust. (Complaint 19, 20.) Third,
Plaintiff alleges that Ms. Cook's assignment of beneficial
interest on behalf of MERS as nominee for Fremont General
Credit Corp. was invalid because Fremont was defunct at
the time of transfer. (Complaint 22,23.) Plaintiff further
contends that Defendants failed to comply with statutory
notice requirements for non-judicial foreclosure proceedings.
(Complaint 6469.)
1. Notice of Default
*4 Plaintiff's first cause of action alleges a violation of
California Civil Code Section 2923.5. Subsection (b) of
2923.5 requires, a notice of default filed pursuant to section
2924 to include a declaration that the mortgagee, beneficiary,
[or] authorized agent has contacted the borrower, or has tried
with due diligence to contact the borrower as required by this
section ...Civil Code sections 29242924h, inclusive, do
not require actual receipt by a trustor of a notice of default
or notice of sale. They simply mandate certain procedural
requirements reasonably calculated to inform those who may
be affected by a foreclosure sale and who have requested
notice in the statutory manner that a default has occurred
and a foreclosure sale is imminent.' Knapp v. Doherty,
123 Cal.App.4th 76, 8889, 20 Cal.Rptr.3d 1 (Cal.App. 6th
Dist.2004), citing Lupertino v. Carbahal, 35 Cal.App.3d 742,
74647, 111 Cal.Rptr. 112 (Cal.App.3d Dist.1973). Plaintiff
disputes the truth of the declaration contained in the notice
of default, not the fact of the notice of default's filing.
Plaintiff pleads no facts in support of bald contention that
Defendants did not comply with section 2923.5. (Complaint
6668.) When attacking a non-judicial foreclosure sale, a
borrower must overcome a presumption of propriety. Knapp
v. Doherty, 123 Cal.App.4th 76, 86 n. 4, 20 Cal.Rptr.3d 1
(2004). He may do this by proving an improper procedure
occurred and by demonstrating resulting prejudice. Id. Even
assuming a failure to do due diligence on the part of Ms.
McCarty, signatory on behalf of Chase Home Finance for
purposes of the declaration of compliance under California
Civil Code Section 2923.5(b), or Chase Home Finance, as
agent for MERS as beneficiary, the plaintiff has neither
shown prejudice nor even alleged that it exists.
Even if plaintiff could prove that the terms of section 2923.5
were not complied with there is no remedy presently available
to plaintiff under this section. As this Court has previously
recognized, a California Court of Appeal has held that section
2923.5 provides a pre-sale remedy only and that the only
available remedy is a postponement of the foreclosure sale.
Mabry v. Superior Court, 185 Cal.App.4th 208, 225, 110
Cal.Rptr.3d 201 (Cal.Ct.App. June 2, 2010).There is nothing
in section 2923.5 that even hints that noncompliance with
the statute would cause any cloud on title after an otherwise
properly conducted foreclosure sale.Id. Once the sale is held,
as it was here, the statute is no longer applicable. Id.
2013 WL 593671
Under this cause of action plaintiff seeks to void the trustee
sale. Under California law, [a] valid and viable tender of
payment of the indebtedness owing is essential to an action
to cancel a voidable sale under a deed of trust.Karlsen v.
American Sav. & Loan Assn., 15 Cal.App.3d 112, 117, 92
Cal.Rptr. 851 (1971). Those courts that have examined the
issue have found tender is required for claims under Section
2923.5. See, e.g,. Keen v. American Home Mortg. Servicing,
Inc., 2009 WL 3380454 at. *10 (E.D.Cal.2009) (noting that
overwhelming majority of California district courts require
tender when examining wrongful foreclosure claims); Anaya
v. Advisors Lending Group, 2009 WL 2424037 at. * 10
(E.D.Cal.2009) (An action to set aside a foreclosure sale,
unaccompanied by an offer to redeem, does not state a cause
of action which a court of equity recognizes.); Pantoja v.
Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1183
84 (N.D.Cal.2009) ( Under California law, in an action to
set aside a trustee's sale, a plaintiff must demonstrate that he
has made a valid and viable tender [offer] of payment of the
indebtedness.) (quoting Karlsen, 15 Cal.App.3d at 117, 92
Cal.Rptr. 851). No such tender has been alleged here.
*5 Plaintiff's wrongful foreclosure claims under California
Civil Code Section 2923.5 must therefore be dismissed
without leave to amend.
2. Wrongful Foreclosure
Plaintiff's second cause of action alleges that [n]one of
the Defendants have standing to enforce the Note because
they are not the owners of the Note, holder of the Note
or beneficiary under the Note. None of the Defendants
claims to be a holder of the Note or a beneficiary under the
Note.(Complaint 73)
If the trustee's deed recites that all statutory notice
requirements and procedures required by law for the
conduct of the foreclosure have been satisfied, a rebuttable
presumption arises that the sale has been conducted regularly
and properly.Nguyen v. Calhoun, 105 Cal.App.4th 428, 440,
129 Cal.Rptr.2d 436 (2003). The California Court of Appeal
has explained non-judicial foreclosure under California Civil
Code sections 29242924l:
The comprehensive statutory
framework established to govern
nonjudicial foreclosure sales is
intended to be exhaustive.... It includes
a myriad of rules relating to notice
and right to cure. It would be
inconsistent with the comprehensive
and exhaustive statutory scheme
regulating nonjudicial foreclosures to
incorporate another unrelated cure
provision into statutory nonjudicial
foreclosure proceedings.
Moeller v. Lien, 25 Cal.App.4th 822, 834, 30 Cal.Rptr.2d 777
(1994).
Under California Civil Code section 2924(a)(1), a trustee,
mortgagee or beneficiary or any of their authorized agents
may conduct the foreclosure process. Under California Civil
Code section 2924(b)(4), a person authorized to record the
notice of default or the notice of sale includes an agent
for the mortgagee or beneficiary, an agent of the named
trustee, any person designated in an executed substitution
of trustee, or an agent of that substituted trustee.Upon
default by the trustor, the beneficiary may declare a default
and proceed with a nonjudicial foreclosure sale.Moeller, 25
Cal.App.4th at 830, 30 Cal.Rptr.2d (1994). In the present case
Fremont General Credit Corporation was the original Trustee
and MERS the original Beneficiary of the Deed of Trust.
(Complaint 15.) (Notice of Default.)
4
As the designated beneficiary and nominee for the lender
under the Deed of Trust, MERS had the authority to assign the
Deed of Trust and to substitute Trustee Corps as trustee. See,
e.g., Madrid v. Bank of Ameica Corp., 2011 WL 2729429,
at *3 (S.D.Cal. July 13, 2011) ([P]ursuant to the Deed of
Trust, MERS had the authority to assign its beneficial interest
to another party.); Castaneda v. Saxon Mortg. Services,
Inc., 687 F.Supp.2d 1191, 1198 (E.D.Cal.2009) (As the
listed nominee and beneficiary under the Deed of Trust,
MERS had authority to assign its beneficial interest to another
party.); Hensley v. Bank of New York Mellon, 2011 WL
2118810, at *3 (E.D.Cal. May 27, 2011) (internal citations
omitted) ([C]ourts have held that where MERS acts as a
beneficiary under a deed of trust, it has the right to assign its
interest. Moreover, California Civil Code 2934a expressly
authorizes a beneficiary under a deed of trust to substitute
the trustee.); Edwards v. Aurora Loan Services, LLC, 2011
WL 1668926, at *20 (E.D.Cal. May 2, 2011) (California law
permits a beneficiary to make a substitution of trustee and
grant the power to foreclose.); Lawther v. Onewest Bank,
2010 WL 4936797, at *6 (N.D.Cal. Nov.30, 2010) (Courts
in this Circuit have repeatedly recognized that MERS, as a
named nominal beneficiary to a Deed of Trust, has the power
to make assignments and substitutions under California's
2013 WL 593671
statutory foreclosure scheme.). Further, the deed of trust
specifies that [b]orrower understands and agrees that MERS
holds only legal title to the interest granted by [b]orrower in
this Security Instrument, but, if necessary, to comply with
law or custom, MERS (as nominee for Lender and Lender's
successors and assigns) has the right: to exercise any or all
of those interests, including but not limited to the right to
foreclose and sell the property.... (Deed of Trust p. 3 of 5.)
Additionally, California law does not require assignment to
be made in writing for an assignee beneficiary to foreclose.
Parcray v. Shea Mortg. Inc ., 2010 WL 1659369 at. *11
(E.D.Cal. Apr. 23, 2010) Accordingly, MERS had standing
to assign its beneficial interest.
*6 Plaintiff claims that Ms. Cook was not a vice president
or authorized agent of MERS acting as nominee for the
defunct Fremont Investment and Loan for purposes of
assignment of a beneficial interest in the trust. (Complaint
23, 60) Further, Plaintiff contends that the Substitution
of Trustee made by Ms. Cook was invalid because of the
alleged invalid assignment of beneficial interest and because
Ms. Cook was not an authorized signatory of Deutsche Bank.
(Complaint 62)
This Court recognizes a split of authority on the issue
of whether allegations of lack of agency capacity of the
signatory may underlie a wrongful foreclosure claim without
judicially noticeable facts by either party. Many recent
cases have held to the effect that the dual position of a
signatory does not give rise to an inference of lack of
agency relationship. See Chua v. IB Property Holdings, LLC,
2011 WL 3322884, at. *2 (C.D. Cal Aug. 1, 2011) ( [T]o
the extent that Plaintiffs take issue with Lisa Markham's
dual position, Plaintiffs have not identified a relevant legal
authority prohibiting one individual from working for both
CitiMortgage and MERS or from acting as an agent for both.);
see also Couch v. JPMorgan Chase Bank, N.A. No. CV
118710GHK (Ssx), at *5 (C.D.Cal. May 14, 2012) (The
mere fact that Derborah Brignac was not an employee of
JPMorgan and Colleen Irby was not an employee of CRC
does not give rise to a reasonable inference that they did
not have the authority to sign documents on behalf of those
companies.) Conversely, this District has also recognized
a claim where the complaint stated that the signatory of
the substitution of trustee was not in fact an officer of the
corporation she purported to represent but rather an employee
of a third party lender and defendant provided no judicially
noticeable documentation to the contrary. Michel v. Deutsche
Bank Trust Company, as Trustee for GSAA Home Equity
Trust 20062 et. al. No 1:10cv2375 AWI SKO (E.D.Cal.
Sept. 20, 2012); see also Tang v. Bank of AM., N.A., 2012 WL
960373, at *1011 (C.D.Cal. Mar.19, 2012.)(Aside from the
very documents whose legitimacy is reasonably questioned
by Plaintiffs, Defendants submit no judicially noticeable
documents showing that [signatory] was indeed an agent for
BOA and not MERS ... The Court believes that it would
benefit from the minimal discovery necessary to prove the
agency relationship between BOA, MERS, and [signatory.] ).
Consistent with its previous holding, the Court concludes
that this issue is more appropriately resolved at the summary
judgment stage. Michel v. Deutsche Bank, No. 1:10cv2375
AWI SKO at *9 (E.D. Cal. Sept 20, 2012); Milyakov v.
JP Morgan Chase, N.A., 2012 U.S. Dist. LEXIS, at *12
13,2012 WL 879245 (N.D.Cal. Mar. 15, 2012.)Consistent
with its ruling in Michel v. Deutsche Bank, the court holds
that discovery necessary to prove that Ms. Cook was in fact an
agent of MERS and Deutsche Bank National Trust is required
before the court would reconsider a motion for summary
judgment on the same ground. If Ms. Cook was not authorized
to sign the assignment of deed of trust and substitution of
trustee then both are invalid.
*7 A trustee's sale undertaken by one who is not the
valid trustee is void. See Dimock v. Emerald Properties,
81 Cal.App.4th 868, 876, 97 Cal.Rptr.2d 255 (Cal.App.4th
Dist.2000); Pro Value Properties, Inc. v. Quality Loan
Service Corp., 170 Cal.App.4th 579, 581, 88 Cal.Rptr.3d 381
(Cal.App.2d Dist.2009). Where a trustee sale is void tender
need not be alleged because the action is not based in equity.
Dimock v. Emerald Properties LLC, 81 Cal.App.4th 868, 877,
97 Cal.Rptr.2d 255 (2000).
Without judicially noticeable documents showing that Ms.
Cook was in fact authorized to sign on behalf of MERS
5
and
Deutsche Bank National Trust Co., this court will not dismiss
the wrongful foreclosure cause of action at this stage.
6
3. Securitization
Plaintiff does not have standing to challenge the securitization
of his loan because he is not a party to the Pooling Service
Agreement (PSA).Junger v. Bank of Am., N.A., 2012 WL
603262 *3 (C.D.Cal. Feb.24, 2012); see also In re Correia,
452 B.R. 319, 324 (1st Cir.BAP 2011) (holding that debtors,
as non-parties to a PSA, lack standing to challenge a mortgage
assignment based on non-compliance with the agreement).
7
2013 WL 593671
Even if plaintiff had standing to address the securitization
process, securitization of a loan does not in fact alter or
affect the legal beneficiary's standing to enforce the deed of
trust.Sami v. Wells Fargo Bank, C 1200108 DMR, 2012
WL 967051, at. *5 (N.D.Cal. Mar. 21, 2012) (quoting Reyes
v. Gmac Mortgage LLC, No. 110100, 2011 WL 132275,
at. *3 (D. Nev. April 5, 2011)); see also Nguyen v. Bank of
Am. Nat'l Ass'n, 2011 WL 5574917, at. *9 (N.D.Cal. Nov.
15, 2011) (securitization of mortgage loan does not provide
mortgagor with cause of action). To the extent Plaintiff
contends that Defendants Deutsche Bank or NDEx West do
not have the authority to foreclose because the loan was
packaged and resold in the secondary market, this argument
is rejected. Lane v. Vitek Real Estate Industries Group, 713
F.Supp.2d 1092, (E.D.Cal.2010) (The argument that parties
lose interest in a loan when it is assigned to a trust pool has
also been rejected by numerous district courts.); Benham v.
Aurora Loan Services, 2009 WL 2880232 at. *3 (N.D.Cal.
Sept. 1, 2009.) [S]ecuritization merely creates a separate
contract, distinct from [p]laintiffs['] debt obligations under
the note, and does not change the relationship of the parties
in any way. Reyes, 2011 WL 1322775, at. *3. Accordingly,
plaintiff's claim of the impossibility of any servicer or trustee
[being] ... the agent for the holder of the note for purposes of
standing to foreclose is rejected. (Complaint 38.)
4. Privity of Contract
Plaintiff's third cause of action asserts that Plaintiff's
participation in the mortgage contract was procured by
overt and covert misrepresentations and nondisclosures. The
parties did not share a single expectation with respect to any of
the terms of the mortgage contract and therefore the contract
is void ab initio. No enforceable contract was formed between
Plaintiff and any of these Defendants, so the Deed of Trust
and Promissory Note were not assets of Defendants that could
be acquired or assumed.(Complaint 106107) Since the
court has concluded previously that the plaintiff has stated
a plausible claim based on the allegation that assignment
of beneficial interest by Ms. Cook on behalf of MERS was
invalid (See supra part III.2. Wrongful Foreclosure) but that
the securitization process had no legal impact on the legal
positions of the original parties to the note and deed of trust
(See supra part III.3. Securitization), this section will deal
only with the validity of the execution of the original deed of
trust.
*8 California Civil Code Section 1550 requires four essential
elements to a contract: 1) parties capable of contracting, 2)
their consent, 3) a lawful object, and 4) sufficient cause or
consideration. Cal. Civ.Code 1550. Section 1565 specifies
that the requisite consent must be: 1) free, 2) mutual, and
3) communicated by each to the other. Cal. Civ.Code
1565. It is plaintiff's claim that, The parties did not share
a single expectation with respect to any of the terms of
the mortgage contract and therefore the contract is void ab
initio.(Complaint 106)
[A]bsent special circumstances ... a loan transaction is at
arm's length and there is no fiduciary relationship between
the borrower and the lender.Oaks Management Corp. v.
Superior Court, 145 Cal.App.4th 453, 466, 51 Cal.Rptr.3d
561 (Cal.Ct.App.2006); Nymark v. Heart Fed. Savings &
Loan Assn., 231 Cal.App.3d at 1093 n. 1, 283 Cal.Rptr.
53 (The relationship between a lending institution and
its borrower-client is not fiduciary in nature.); see Cross
v. Downey S & L Ass'n, 2009 U.S. Dist. LEXIS 17946,
at * 14,2009 WL 481482 (C.D.Cal. Feb. 23, 2009). A
commercial lender is entitled to pursue its own economic
interests in a loan transaction. Nymark, 231 Cal.App.3d
at 1093, n. 1, 283 Cal.Rptr. 53. This right is inconsistent
with the obligations of a fiduciary, which require that the
fiduciary knowingly agree to subordinate its interests to act
on behalf of and for the benefit of another. Id. Moreover, a
lender owes no duty of care to the [borrower] in approving
[a] loan.Wagner v. Benson, 101 Cal.App.3d 27, 35, 161
Cal.Rptr. 516 (1980).Wagner held that as a matter of law,
the lender did not owe a legal duty not to place borrowers
in a loan even where there was a foreseeable risk that the
borrowers would be unable to repay. Id.; see also Cross, 2009
WL 481482 at. *5 (lender has no duty to disclose to plaintiffs
that they do not have the ability to repay the loan).
Plaintiff has pled no specific misrepresentations or
nondisclosures that would give rise to the plausible existence
of a cause of action in this case. Even if the original lender
fully expected to sell the loan to investors immediately and
wait for plaintiff's inevitable default, plaintiff states no claim
for relief since none of the Defendants had no duty to disclose
an adverse financial interest.
Based on the judicially noticed Deed of Trust it appears
that Mr. Halajian and Fremont General Credit Corp. at least
agreed to the terms of the 15 pages of the Deed of Trust
bearing Halajian's initials and signature. This document is
sufficient to meet the California requisite of objective mutual
assent based on the reasonable meanings of the words and
actions of the parties, not their unexpressed intentions or
2013 WL 593671
understandings. Netbula, LLC. V. BlindView Development
Corp., 516 F.Supp.2d 1137, 1155 (N.D.Cal.2007).
Since Plaintiff fails to state a claim upon which relief can be
granted this claim is dismissed with leave to amend.
5. Quiet Title
*9 Plaintiff's fourth cause of action attempts to state a claim
for quiet title. To establish a claim for quiet title, plaintiff
must file a verified complaint that alleges: (a) a description of
the property; (b) plaintiff's title as to which a determination
is sought; (c) the adverse claims to the title; (d) the date as
to which the determination is sought; and (e) a prayer for
the determination of title. Cal.Code Civ. Proc. 761.020.
Plaintiff fails as to part (c).
Plaintiff states that Defendant Deutsche Bank now claims
title to the property by virtue of a void Trustee's Deed of
Sale.(Complaint 111) Assuming that plaintiff is correct as
to the invalid assignment of interest by MERS the plaintiff
has not pled facts that would give rise to the legal conclusion
that plaintiff has paramount title. An invalid assignment
and substitution would still leave MERS as beneficiary and
Fremont (or its successors or assigns) as lender and trustee as
to the Deed of Trust defaulted on by Plaintiff.
Further, Plaintiff fails to explain the grounds on which his
claim is based, as required by section 761.020(c), other than
a conclusory and legally inaccurate allegation that defendants
are not the holders in due course of the promissory note or
deed of trust for the property based on the securitization of
the loan. Nor has plaintiff alleged tender or the ability to
offer tender. See Kelley v. Mortg. Elec. Registration, 642
F.Supp.2d 1048, 1057 (N.D.Cal.2009) (Plaintiffs have not
alleged ... that they have satisfied their obligation under the
Deed of Trust. As such, they have not stated a claim to quiet
title.); see also Distor v. U.S. Bank, NA, 2009 WL 3429700,
at *6 (N.D.Cal.Oct.22, 2009) (plaintiff has no basis to quiet
title without first discharging her debt, and ... she has not
alleged that she has done so and is therefore the rightful
owner of the property).Nothing short of the full amount due
the creditor is sufficient to constitute a valid tender, and the
debtor must at his peril offer the full amount .Rauer's Law
& Collection Co. v. Sheridan Proctor Co., 40 Cal.App. 524,
525, 181 P. 71 (1919).
To obtain rescission or cancellation, the rule is that the
complainant is required to do equity, as a condition to his
obtaining relief, by restoring to the defendant everything of
value which the plaintiff has received in the transaction....
The rule applies although the plaintiff was induced to enter
into the contract by the fraudulent representations of the
defendant.Fleming v. Kagan, 189 Cal.App.2d 791, 796, 11
Cal.Rptr. 737 (1961).A valid and viable tender of payment
of the indebtedness owing is essential to an action to cancel a
voidable sale under a deed of trust.Karlsen, 15 Cal.App.3d
at 117, 92 Cal.Rptr. 851. Nowhere in Plaintiff's complaint is
tender even mentioned.
Therefore, Plaintiff's quiet title claim is insufficient to
withstand a motion to dismiss under Twombly, 550 U.S. at
555 and should be dismissed with leave to amend.
6. Fraud
*10 Plaintiff's fifth cause of action attempts to state a
claim for fraud. Plaintiff's fraud claim relies on two central
premises: First, securitization changed the relationships of the
parties to the Deed of Trust and Promissory Note contracts,
(Complaint 118.) and second, the parties who foreclosed
upon plaintiff had no legal right to do so. (Complaint 119
123.) This court has already determined that securitization
does not alter the relationships of the parties to the original
agreement. See supra, part III.3., Securitization. Next, this
court has already determined that plaintiff has alleged facts
sufficient to state a plausible claim as to the lack of agency
relationship between Ms. Cook and MERS and Ms. Cook and
Deutsche Bank for purposes of a wrongful foreclosure action.
See supra, part III.2, Wrongful Foreclosure. What is left to
be determined is whether Plaintiff can meet the heightened
pleading requirements of Federal Rule of Civil Procedure 9(b)
and whether any of the Defendants had a duty to disclose
information that they allegedly withheld from Plaintiff.
Federal Rule of Civil Procedure 9(b) provides that [i]n
allegations of fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake.To satisfy the rule, a plaintiff must allege the who,
what, where, when, and how of the charged misconduct.
Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997). In
other words, the circumstances constituting the alleged fraud
must be specific enough to give defendants notice of the
particular misconduct so that they can defend against the
charge and not just deny that they have done anything
wrong.Vess v. CibaGeigy Corp. U.S.A., 317 F.3d 1097,
1106 (9th Cir.2003).The plaintiff must set forth what
is false or misleading about a statement, and why it is
false.Vess v. CibaGeigy Corp. USA, 317 F.3d 1097, 1106
(9th Cir.2003). By contrast, [m]alice, intent, knowledge,
2013 WL 593671
and other conditions of a person's mind may be alleged
generally.Fed. R. Civ. Pro. 9(b). When a party pleads
fraud against a corporation, as plaintiffs in this case, the
already heightened pleading standard is further heightened.
The requirement of specificity in a fraud action against a
corporation requires the plaintiff to allege the names of the
persons who made the allegedly fraudulent representations,
their authority to speak, to whom they spoke, what they
said or wrote, and when it was said or written.Cerecedes v.
U.S. Bankcorp, 2011 WL 2711071 at. *5 (C.D.Cal. July 11,
2011) (citing Tarmann v. State Farm Mut. Auto. Ins. Co., 2
Cal.App.4th 153, 2 Cal.Rptr.2d 861 (1991)). Moreover, [i]n
the context of a fraud suit involving multiple defendants, a
plaintiff must, at a minimum, identif[y] the role of [each]
defendant[ ] in the alleged fraudulent scheme.Swartz v.
KPMG, LLP, 476 F.3d 756, 765 (9th Cir.2007) (quoting
Moore v. Kayport Package Express, Inc., 885 F.2d 531, 541
(9th Cir.1989)).
*11 Under California law, the elements of fraud are:
(1) a misrepresentation (false representation, concealment,
or nondisclosure); (2) knowledge of falsity (or scienter);
(3) intent to defraud, i.e., to induce reliance; (4) justifiable
reliance; and (5) resulting damage.Robinson Helicopter Co.,
Inc. v. Dana Corp. ., 34 Cal.4th 979, 990, 22 Cal.Rptr.3d 352,
102 P.3d 268 (2004).
Plaintiff's complaint alleges that, Defendant Whitney K.
Cook is a known robosigner having signed thousands of
documents without sufficiently reviewing said documents
or making any effort whatsoever to ascertain what the
documents were for or what they were intended to do.The
court is cognizant of reports of the use of robosigners by
financial institutions. However, the court fails to see how
the personal knowledge of Ms. Cook as to the contents of
the Deed of Trust is significant in this context when the
Plaintiff does not argue that tender of the debt was paid or that
the amount of the debt is inaccurate. See Cerecedes v. U.S.
Bankcorp, 2011 WL 2711071 at p. * 5 (2011).
The court will recognize plaintiff's claim of misrepresentation
insofar as plaintiff has already stated a claim that Ms. Cook
may not have been authorized to sign on behalf of MERS and
Deutsche Bank. Based on the recognized misrepresentation
there is no plausible claim that Mr. Halajian justifiably
relied on the false statement. Plaintiff merely alleges that he
reasonably relied upon the representations of the Defendants
and or their predecessors, agents or assigns, in agreeing
to execute the mortgage loan documents.(Complaint
128). Contrary to his assertion that he relied upon the
representation, Mr. Halajian brought the present wrongful
foreclosure suit based on the allegedly false assignment and
substitution of trustee.
The failure or inability of plaintiff to allege reliance is fatal
to plaintiff's fraud claim. It is therefore dismissed with leave
to amend.
7. Declaratory and Injunctive Relief
Plaintiff's sixth cause of action requests declaratory and
injunctive relief. This section of his Complaint is correctly
understood as requesting a remedy. The court would note that
the declaratory and injunctive relief requested is contingent
on the outcome of the wrongful foreclosure cause of action.
Since the second cause of action, wrongful foreclosure, has
not been dismissed the court will not dismiss the requested
relief.
IV.
ORDER
Defendants' motions to dismiss are GRANTED in part and
DENIED in part. Plaintiff has stated a claim in the second and
sixth causes of action based on the theory that the assignment
and substitution of trustee were ineffective. Defendants'
motions to dismiss the second and sixth causes of action are
DENIED.
Defendants' motions to dismiss the first cause of action
alleging a violation of California Civil Code Section 2923.5
are GRANTED without leave to amend as to them.
Defendants' motions to dismiss the third, fourth, and fifth
causes of action for lack of privity of contract, quiet title, and
fraud, respectively, are GRANTED with leave to amend as to
each of them. Plaintiffs may file an amended complaint within
twenty one days of entry of this order.
*12 IT IS SO ORDERED.
2013 WL 593671
Footnotes
1
The factual history is provided for background; the assertions contained therein are not necessarily taken as true. The legally relevant
facts relied upon by the court are discussed within the analysis.
2
A court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980).
3
Deutsche Bank National Trust Co.'s request that the court take judicial notice of the Deed of Trust, Notice of Default and attached
declaration, Notice of Sale, Substitution of Trustee, Assignment of Deed of Trust, and Trustee's Deed Upon Sale is granted. See
Sears, 245 F.2d at 70;Lee, 250 F.3d at 68889. Here, Plaintiff's complaint refers to the note, Deed of Trust, Notice of Default, Notice
of Sale, and Substitution of Trustee.
Plaintiff objects that these documents do not satisfy the requirements of FRE 201 (Docket No. 34). These documents, however,
are matters of public record and not generally subject to dispute. As such, this court may consider Plaintiff's pertinent loan and
foreclosure documents.
Whitney K. Cook's request that the court take judicial notice of the PACER case locator results for Fremont Investment and Loan is
granted to the extent that court recognizes Fremont Investment and Loan was actively attempting to enforce its rights as a creditor
as recently as May 2, 2012.
4
Plaintiff claims that MERS has no standing to initiate legal actions concerning the property because MERS does not hold any legal
or equitable interest in the debt or the property.(Complaint 30.) The judicially noticeable Deed of Trust specifically lists MERS
as the nominee for the lender and the lenders successors and assigns as well as beneficiary which directly contradicts Plaintiff's legal
conclusion.
5
The court gives little weight to Plaintiff's request for judicial notice of the two page list of corporate officers of MERS as evidence that
Ms. Cook is not an officer considering Plaintiff alleges in his complaint that MERS has literally thousands of officers. (Complaint
26.)
6
Plaintiff points out that [MERS has] never ha[d] possession of the promissory note.(Complaint 27) Under Civil Code section
2924, no party needs to physically possess the promissory note.Sicairos v. NDEX West, LLC, 2009 WL 385855, at *3 (S.D.Cal.2009)
(citing Cal. Civ.Code, 2924(a)(1)). Rather, [t]he foreclosure process is commenced by the recording of a notice of default and
election to sell by the trustee.Moeller, 25 Cal.App.4th at 830, 30 Cal.Rptr.2d 777. An allegation that the trustee did not have the
original note or had not received it is insufficient to render the foreclosure proceeding invalid.Neal v. Juarez, 2007 WL 2140640,
*8 (S.D.Cal.2007). Whether MERS or Fremont ever had possession of the promissory note has no legal bearing.
7
Because the Court has determined that the plaintiff lacks standing, it does not address all of the remaining potential bases for dismissal
on the related securitization claims.
Phillips v. Biers, Not Reported in P.3d (2010)
2010 UT App 348
2010 WL 5027052
UNPUBLISHED OPINION. CHECK COURT RULES
BEFORE CITING.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
Court of Appeals of Utah.
Daniel PHILLIPS and Emily
Phillips, Plaintiffs and Appellees,
v.
Samuel L. BIERS and Jami Biers,
Defendants and Appellants.
No. 20100743-CA. | Dec. 9, 2010.
Second District, Ogden Department, 100904509; The
Honorable Mark R. DeCaria.
Samuel L. Biers and Jami Biers, Durham, North Carolina,
Appellants Pro Se.
Jeremy M. Shorts, Orem, for Appellees.
Before Judges McHUGH, THORNE, and VOROS.
Opinion
MEMORANDUM DECISION
(Not For Official Publication)
PER CURIAM:
*1 This matter is before the court on Daniel and Emily
Phillips's motion for summary disposition. The Phillipses
allege that the order of restitution that Samuel L. and Jami
Biers seek to appeal is not a final judgment.
An appeal may be taken from a district or juvenile court
to the appellate court with jurisdiction over the appeal from
all final orders and judgments. Utah R.App. P. 3(a). To be
final, the trial court's order or judgment must dispose of all
parties and claims to an action. Bradbury v. Valencia, 2000
UT 50, 10, 5 P.3d 649. In order for a judgment to be final,
a trial court must even determine attorney fee awards. Id.
The order of restitution is not a final, appealable judgment
because it does not resolve all issues raised in the unlawful
detainer case. Specifically, the order of restitution failed to
resolve the Phillipses' claims for monetary damages. This
includes the Phillipses' request for attorney fees. Therefore,
while the order of restitution required the Bierses to vacate the
premises, the order did not resolve the entire dispute between
the parties. Accordingly, we lack jurisdiction over the appeal
and must dismiss. See Varian-Eimac, Inc. v. Lamoreaux, 767
P.2d 569, 570 (Utah Ct .App.1989).
The appeal is dismissed without prejudice to the filing of a
timely appeal from a final order.
Parallel Citations
2010 UT App 348

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