Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-K-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

WOLF CREEK SKI CORPORATION, INC.'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT STATING OR SUGGESTING THAT THE JOINT VENTURE IS ATTEMPTING TO FORCE PLAINTIFF INTO SELLING THE SKI AREA

Plaintiff, Wolf Creek Ski Corporation, Inc ("Wolf Creek"), through its undersigned counsel, respectfully responds as follows to Defendant Leavell-McCombs Joint Venture's ("Defendant" or "Joint Venture") motions in limine seeking to exclude evidence or testimony suggesting that Joint Venture is attempting to force plaintiff into selling the ski area: 1. The Joint Venture seeks to preclude all "evidence, testimony or argument stating

or suggesting that the Joint Venture is or has been attempting through this litigation, or by other means, to drive Plaintiff into bankruptcy or financial difficulty in order to acquire control" over Wolf Creek. Motion at 1. Yet it does not identify any evidence, other than a single newspaper article quoting the Joint Venture's representative, that it seeks to exclude or identify any witnesses that might testify to such matters. Rather, the Joint Venture hopes to cut off an avenue

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of argument and evidence without knowing what either party may present on this subject or how it may relate to the various evidence presented at trial. 2. A party has a right to argue "any evidence presented and all reasonable inferences

from that evidence," and thus, to the extent the evidence supports reasonable arguments and inferences, a court should allow a party to present such arguments. Rebolledo v. Herr-Voss Corp., 101 F. Supp. 2d 1034, 1037 (N.D. Ill. 2000). To protect this basic principle, motions in limine are subject to a high standard. See Misener v. General Motors, 924 F. Supp. 130, 132 (D. Utah 1996) (characterizing in limine exclusion of evidence an "extraordinary remedy"). A party who seeks exclusion of evidence must show that it is irrelevant or inadmissible on all grounds. See First Savings Bank v. U.S. Bancorp, 117 F.Supp.2d 1078, 1082 (D. Kan. 2000) ("The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground."); Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 293 F.Supp.2d 397, 407 (S.D.N.Y. 2003) ("[E]vidence should not be excluded on a motion in limine unless such evidence is clearly inadmissible on all possible grounds."). 3. This standard is not met where a motion in limine "lacks the necessary specificity

with respect to the evidence to be excluded or the purported reason for the introduction of such evidence." National Union Fire Ins. Co. v. L. E. Myers Co., 937 F. Supp. 276, 287 (S.D.N.Y. 1996) (cited with approval in First Savings Bank, 117 F.Supp.2d at 1082). In National Union, the plaintiff sought to exclude evidence and testimony regarding the meaning of certain insurance policy provisions on the ground that such evidence would be inadmissible parole evidence. Id. While the court agreed with the principle that extrinsic evidence offered to contradict the unambiguous terms of an insurance contract are not admissible under the parol

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evidence rule, it would not, without more, grant the motion because it did not specify which evidence should be excluded or who intended to offer such evidence. Id. The court concluded by observing that such a broad and general request was "too sweeping in scope to be decided in limine." Id. 4. Here, as in National Union, the Joint Venture seeks to exclude an entire avenue of

argument without specifying what evidence is at issue or which party would introduce such evidence. In fact, the only evidence the Joint Venture has pointed to is a newspaper article in which an aggressive statement was attributed to Mr. Honts. While the Joint Venture challenges this article under the hearsay rule, Wolf Creek might seek to admit newspaper articles, and statements made therein, for any number of proper purposes, including to show the basis of the Pitchers' beliefs. See, e.g., U.S. v. Dowlin, 408 F.3d 647, 660 (10th Cir. 2005 ("We agree [that the party] did not offer the testimony for the truthfulness of [the statements], but rather for the nonhearsay purpose of showing a basis for [the party's] belief . . . ."). Without knowing the purpose for which the evidence or argument will be used, it is simply inappropriate to exclude such evidence before trial.1

The same can be said for the "false assertion" the Joint Venture seeks to exclude. The Joint Venture insists that Wolf Creek's "false assertion" is designed "to prejudice the jury by improperly comparing the financial resources of the parties in keeping with the Plaintiff's xenophobic rhetoric describing Mr. McCombs as a `Texas billionaire.'" Yet, again, it neither points to any evidence that might be used to prove the "false assertion," nor identifies what witness, if any, might testify about the "false assertion." Notably, the Joint Venture has not moved to exclude evidence of the Joint Venture's financial backing, and the Joint Venture's expert John Montgomery has relied on the Joint Venture's "financial wherewithal to see this project to completion." See Report of John Montgomery at 6, attached as exhibit 2 to Wolf Creek Ski Corporation's Daubert Motion to Exclude in Part the Testimony and Report of Defendant's Expert John A. Montgomery (Docket No. 278).
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5.

Moreover, Wolf Creek agrees that it will refrain from making any argument

related to forcing a sale of the ski area in its opening statement, and that it will remove any reference to it from its proposed jury instructions. At trial when arguments are permitted (such as closing argument), however, Wolf Creek should be allowed to make any relevant argument that is supported by competent evidence. The Joint Venture had the opportunity to pursue discovery as to all evidence supporting Mr. Pitcher's beliefs, but neglected to do so ­ notwithstanding that it deposed Davey Pitcher three times. Had they sought discovery, they would have learned, among other things, that Wolf Creek principal Davey Pitcher will testify as to his belief that the Joint Venture is attempting to bleed Wolf Creek through this litigation and, ultimately, force it to sell the ski area. Mr. Pitcher will base this on his observations of the Joint Venture's aggressive actions in this lawsuit, statements made to him by the Joint Venture relating to the Joint Venture's desire for unified ownership of both the Ski Area and the Village, the existence of the Right of First Refusal, the Joint Venture's frivolous damage claims, and statements that have publicly been attributed to Mr. Honts. 2

The Joint Venture continues to suggest, in this and other motions, that Wolf Creek has orchestrated some sort of derogatory media campaign against the Joint Venture that is the source of its problems. See, e.g., Motion at 2 ("The Ski Corp. has hurled a dizzying number of . . . derogatory accusations . . . calculated in total to tarnish the Joint Venture's reputation in the minds of the public . . . ."). The allegations of a media campaign, as well as Wolf Creek's culpability, are unfounded. Although the Joint Venture has made much of Davey Pitcher's statements to the press, a quick review of articles discussing the disputes relating to Wolf Creek reveals approximately 17 articles in which a member of the Pitcher family is quoted, and over 70 articles in which Mr. Honts or Mr. McCombs is quoted. Any search of Mr. Honts's statements will no doubt lend the reader a colorful set of inflammatory statements by Mr. Honts that demonstrates that he is his own worst enemy. See, e.g., Austin Statesman, Dec. 5, 2004 ("I am the tip of Red McCombs' spear. . . . I sometimes feel like Patton"); Durango Herald, July 24, 2005 ("We hope Davey has $20 million in his wallet . . . ."); Rocky Mountain News, Sept. 17, 2005 ("What percentage of public land are we destroying? It's like taking one Mason jar of water out of the Pacific . . . . The lynx are thriving in Canada. . . Unless they start drinking beer
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6.

Further, the Joint Venture also has repeatedly put at issue Wolf Creek's

motivations for bringing this lawsuit. The Joint Venture constantly attempts to cast Wolf Creek as an aggressor that brought this litigation to stop the proposed development. However, Wolf Creek filed this lawsuit to stop the Joint Venture's threats and bullying, and Wolf Creek has persisted in it because it believes the continued existence of the Ski Area is at issue as a result of the Joint Venture's actions. 7. As the Joint Venture contends that Mr. Pitcher's belief is "a paranoid fantasy with

no good faith basis in truth," the Joint Venture is hard-pressed to demonstrate prejudice. Motion at 7. Indeed, if the Joint Venture is correct regarding the nature of Mr. Pitcher's beliefs, then Mr. Pitcher's testimony will aid the Joint Venture in a trial on which the credibility of the parties is at issue. If the Joint Venture is wrong, however, and a fact finder were to believe after reviewing the evidence that the Joint Venture's motive is to steal the Ski Area (and that Mr. Pitcher's belief is well-founded), then such information is relevant to numerous issues including the Joint Venture's credibility and Wolf Creek's reactions to the Joint Venture's conduct. Such evidence is not unfairly prejudicial. 8. In the end, this motion is nothing more than an attempt, in a vacuum, to wipe out

an entire avenue of argument. A motion in limine, however, does not serve such broad purposes. See, e.g., Libco Corp. v. Dusek, No. 77-C-4386, 1986 WL 5212, at *10 (N.D. Ill. Apr. 30, 1986)3 (The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the and coming into our saloons, they aren't going to be here."); Durango Herald, March 3, 2006 (Referring to a "high noon showdown" he requested with state representative Mark Larson, Honts stated "We have invited the `Coward of the County' to make known his allegations in front of the people he is accusing.")
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This case is attached hereto as Ex. 1.

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objectionable material and showing why the material is inadmissible and prejudicial."). Without the proper specificity, the Joint Venture cannot meet its high burden of demonstrating that the evidence it seeks to exclude is inadmissible for any possible purpose. Indeed, it cannot demonstrate that it seeks to exclude any "evidence" at all. Accordingly, the motion should be denied. Dated this 7th day of April, 2008. HOGAN & HARTSON LLP

By:

s/Jacqueline S. Cooper Andrew R. Shoemaker Cynthia A. Mitchell Jacqueline S. Cooper 1470 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] [email protected] [email protected] (720) 406-5300 telephone (720) 406-5301 facsimile Attorneys for Wolf Creek Ski Corporation, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of April, 2008, I electronically filed the foregoing WOLF CREEK SKI CORPORATION, INC.'S RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT STATING OR SUGGESTING THAT THE JOINT VENTURE IS ATTEMPTING TO FORCE PLAINTIFF INTO SELLING THE SKI AREA with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: George Vernon Berg, Jr. [email protected] Robert D. Erben [email protected] Melissa M. Heidman [email protected] David W. Krivit [email protected] Michael Edward McLachlan [email protected] James Robert Moriarty [email protected] Kim Arquette Tomey [email protected]

s/Jacqueline S. Cooper

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