PCMR v. Talisker: fight moves to the flow charts
March 25, 2014
Park City Mountain Resort wants to show it was denied a right of first refusal to buy the Talisker Land Holdings, LLC acreage underlying most of its terrain.
And the resort’s attorneys in the high-profile 3rd District Court lawsuit with Talisker Land Holdings, LLC have created a series of flow charts that, according to the PCMR side, prove that right was denied.
PCMR filings in recent weeks have included four flow charts that outline how the resort understands a series of business transactions that impact the land involved in the lawsuit. PCMR is using the flow charts as evidence demonstrating its claim in the lawsuit that it was denied a right of first refusal outlined in its leases with Talisker Land Holdings, LLC.
The color-coded flow charts show the progression of the land ownership from the time prior to a deal between Talisker Land Holdings, LLC and Vail Resorts to operate Canyons Resort with the possibility to also operate the PCMR terrain in question depending on the outcome of the lawsuit. The flow charts name firms tied to the Talisker corporate family as well as entities with ties to Vail Resorts. They also include entries for an entity known as Flera, which a PCMR filing says has "day-to-day control" over the land PCMR leases.
Alan Sullivan, the lead attorney for PCMR, said creating the flow charts was a "laborious process" that involved poring through documents provided by the other side and delving into the topic during depositions.
The PCMR side is attempting to show that Talisker Land Holdings, LLC has effectively removed itself from control of the land, triggering the right of first refusal. A PCMR filing says the transactions were "de facto sales" as defined by the Utah Supreme Court.
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"Although Talisker attempts to recast the Vail transaction as a mere stock transfer, the complex, but arguably purposeless, restructuring of the corporate ownership of the Leased Premises exposes Talisker’s true intentions," the PCMR side’s filing says. "If Talisker intended to execute a mere contingent lease with Vail, Talisker did not have to restructure the corporate ownership of the Leased Premises . . . "
The filing also says: "With discovery now completed, the undisputed facts show that after Talisker’s transactions with Vail and Flera, Talisker will indeed never ‘touch this property again,’" adding that the transactions outlined in the flow charts "taken together violate the provisions, since the cumulative effect was to leave Talisker with only a minimal, if any, interest in, and no control over the Leased Premises."
The Talisker Land Holdings, LLC side, though, contends that the leases PCMR held expired, eliminating the resort’s right of first refusal. The firm also claims the flow charts are "misleading and inaccurate for a number of reasons."
"Once a tenant is beyond the term of its contractual right to be on the land, it cannot point to an expired lease to dictate how the owner chooses to dispose of or otherwise make use of its property," the Talisker Land Holdings, LLC filing says.
It also says: "There was no sale of the property to Vail, which will hold essentially the same lease rights to the property that (PCMR) once possessed."
The Talisker Land Holdings, LLC filing indicates the talks with Vail Resorts were not started until months after PCMR filed the lawsuit in March of 2012.
PCMR "cannot look to this Court to relieve them of the consequences of their own business decisions. Nor can they base such extraordinary relief on their own wishful thinking that Talisker would now reverse its clearly declared preference for Vail and choose to enter a new lease with" the PCMR side, the filing says.