Talisker Land Holdings, LLC on Monday provided an extraordinary account of the final days and hours as Park City Mountain Resort attempted to renew its leases before a 2011 deadline, filing a document in a closely watched lawsuit that offers details that had not been made public before.
The account is largely based on depositions of figures involved on the PCMR side. The document, a counterclaim filed in 3rd District Court at Silver Summit, does not include the deposition transcripts. It repeatedly refers to statements made during them, however.
The two leases encompass most of PCMR's terrain, and the resort filed the lawsuit in 2012 arguing the leases were renewed. Talisker Land Holdings, LLC disagrees, contending that the leases expired on April 30, 2011.
The Talisker Land Holdings, LLC account describes a frenetic PCMR and parent Powdr Corp. scrambling to renew the leases before the fast-approaching deadline at the end of that April. On the day before the deadline, April 29, 2011, the account says, the PCMR-Powdr Corp. side was readying to refinance a loan and revolving credit facility, using the leases as the collateral. The figures then "realized the Leases were set to expire the next day," it says.
"That realization precipitated a frantic weekend of activity" by the PCMR side and its law firm, Snell & Wilmer, the Talisker Land Holdings, LLC court filing says.
It says the PCMR side "searched in vain for documents establishing that the lease renewal had been timely exercised." On May 2, the Monday after the deadline, the Snell & Wilmer firm wrote a letter on behalf of the PCMR side in an effort to confirm that the leases were extended, the account says, claiming that the letter was prepared "in anticipation of litigation over the lease expiration two days earlier."
The Talisker Land Holdings, LLC side earlier this year challenged the date of the letter, charging it had been backdated. The PCMR side acknowledged that the letter did not carry the accurate date.
The account says the letter carrying the wrong date "was important" to the PCMR side's effort to finalize the loan. The letter was meant to "mislead Talisker" and "deceive . . . lenders regarding the status of the Leased Premises," it says. John Cumming, the CEO of Powdr Corp., signed the loan agreement, it says.
Critical moments in the April 29-May 2, 2011 timeline, according to the account, include
Jones looked for documents about the lease and the extension, spending 10 hours on April 29 and the entire day on April 30. Other attorneys at the firm were drafted to assist. He did not find documents showing that the lease was extended in the Los Angeles office.
Jones and the PCMR side were unable "to find evidence that the option had been timely exercised in accordance with the terms of the Leases by the time they stopped looking on Sunday, May 1, 2011."
An assistant to Botter entered edits to the electronic version. In a deposition, the assistant testified "she would 'absolutely not' make a change of that nature without direction from someone to do so." The assistant said in the deposition she would have made a change of that type if directed to by Botter, Jones or Cumming. Jones said "he did not change the date of the letter and does not know how the date was changed."
PCMR disagrees with account
The lead attorney for PCMR said in an interview the Talikser Land Holdings, LLC side used "very selected samples" from depositions and documents to draft the timeline.
"We disagree with most of the characterizations," Alan Sullivan said.
He also said the timeline is not relevant to the proceedings, indicating that the merits of PCMR's case are not based on the dating of the letter. He said the Talisker Land Holdings, LLC side was not harmed by the mistaken date.
"It does not relate to any of the claims in the case," he said.