Tuesday, May 7, 2002
Steamboat Springs Attorneys for both sides in Triple Peaks' suit against American Skiing Co. say the matter is fairly simple. They just disagree.
The Denver attorneys for Triple Peaks filed a motion in District Court here Tuesday asking Judge Richard Doucette to issue a summary judgment in their favor, effectively settling the lawsuit. If the judge found in their favor, it would force ASC to carry out a contract to sell the Steamboat Ski Area to Triple Peaks, a group of investors led by Tim and Diane Mueller.
However, there's a chance Doucette will never rule on the request for summary judgment if attorneys for ASC are successful in removing the case from the jurisdiction of the local judge.
Triple Peaks Attorney Joel A. Glover contends the language in the contract did not give ASC the option of terminating the agreement.
But a Denver attorney for ASC said Tuesday she thinks the contract language is clearly in her clients' favor. Mary Wells said her clients are willing to pay the $500,000 in "liquidated damages" called for in the contract in the case that it is breached.
"We are saying indeed, it's plain and clear that they are entitled to $500,000," Wells said. "(American Skiing Co.) is willing to pay it, and that should resolve the entire claim."
Wells is with the firm Wells, Anderson & Race.
Her counterpart, Glover, with Rothgerber Johnson and Lyons in Denver, believes the case is just as straightforward for Triple Peaks.
"There is only one legal issue that needs to be resolved in order for the court to enter summary judgment requiring specific performance of the agreement forcing ASC to close," Glover wrote in a brief filed in Routt County District Court.
"The plain, unambiguous language of the agreement clearly provides that Triple Peaks is entitled to specific performance. There is a liquidated damages payment that applies only if the agreement has been terminated. It is undisputed that the agreement has not been terminated," Glover continued.
It may be Glover's view that the language in the contract is unambiguous and the matter of the termination of the contract is undisputed. However, Wells believes his use of the word "termination" is the wrong choice.
Wells refers to the contract and says it clearly provides for $500,000 liquidated damages in the event that the contract is "breached." Furthermore, she said the contract provides that one of the events resulting in a breach is failure to close. The contract couldn't be plainer, she said.
But in his brief, Glover argues the language of the contract does not give ASC the option of termination. Only Triple Peaks had the right to end the deal, he contends.
"Well established law provides that a liquidated damages provision will only preclude specific performance where the contract vests in the breaching party (in this case, ASC) the option to perform its obligation or to pay liquidated damages," Glover wrote.
Glover says this contract does not give ASC that choice.
"ASC does not have that option," Glover continued. "In this case, the agreement vests Triple Peaks, not ASC, with the option of choosing liquidated damages by terminating the agreement, but does not preclude specific performance. Triple Peaks has not terminated the agreement, and is entitled to specific performance under Colorado law."
Whether Doucette rules on Triple Peaks' claim for summary judgment could swing on a separate filing made Tuesday, seeking to have the original lawsuit returned to U.S. District court in Denver, where it was originally filed.