Free Motion in Limine - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC. Plaintiff(s), v. LEAVELL-MCCOMBS JOINT VENTURE D/B/A THE VILLAGE AT WOLF CREEK Defendant(s). ______________________________________________________________________________ DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY, OR IMPROPER INFLUENCE ______________________________________________________________________________ Defendant Leavell-McCombs Joint Venture ("Joint Venture"), through its undersigned counsel, respectfully submits the following Motion in Limine to exclude evidence, testimony, or argument stating or suggesting that the Joint Venture engaged in any illegal, unethical or covert dealings with the United States government when it acquired title to the Village Property by federal land exchange in or around 1984-86. In support of this motion, the Joint Venture states as follows: Certificate of Conferral: Pursuant to D.C.Colo.LCivR. 7.1A, the undersigned has conferred with opposing counsel to resolve the matter disputed herein and such counsel indicated that Plaintiff will oppose this motion.

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I. INTRODUCTION At issue herein is whether the Ski Corp. breached an agreement with the Joint Venture (the "SURP Agreement") by failing to obtain governmental approval for an access road (the "Tranquility Access Road") connecting the Village Property to nearby Highway 160. Plaintiff Wolf Creek Ski Corporation, Inc.'s ("Ski Corp.") ongoing breach also arises from its continuing conduct in failing to support the Joint Venture's planned development as agreed in the SURP Agreement. The Joint Venture's fraud, unjust enrichment, promissory estoppel and breach of the covenant of good faith claims stem from the Ski Corp.'s actions leading up to the execution of the SURP Agreement and conduct in concealing its wrongdoing in the years thereafter. The Ski Corp. has asserted a single breach of contract claim, and a promissory estoppel claim in the alternative, based on the same allegation: that the Joint Venture breached the SURP Agreement by failing to build a covered road connecting to the Tranquility Access Road and from there leading on into the heart of the Village Property as the "Village Access Road". The Ski Corp. has hurled a dizzying number of other derogatory accusations at the Joint Venture, and its officers and agents, none of them actionable, but calculated in total to tarnish the Joint Venture's reputation in the minds of the public, the governmental agencies with which the Joint Venture is working, the jury pool, and even this Court. The simple necessity of these motions in limine proves this point. The Ski Corp.'s statement of claims and defenses in the Pretrial Order mentions that the Joint Venture acquired property in the Rio Grande National Forest by way of land exchange (the "Land Exchange") with the federal government. At various times over the course of this

litigation, the Ski Corp. has suggested that the Land Exchange was tainted by corruption,

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illegality, unethical conduct, or other improper dealings. These allegations are untrue, irrelevant, and prejudicial. The allegations have been asserted for the sole reason of sullying the Joint Venture's reputation, tainting the jury pool, and negatively influencing public opinion. Accordingly, any evidence, testimony, or argument at trial suggesting that the Land Exchange was tainted by illegality, shady or unethical dealings, or is in any way improper is impermissible under Federal Rules of Evidence 401, 402 and 403. II. RELEVANT FACTS The property currently owned by the Joint Venture was acquired in 1986 by way of exchange with the United States Forest Service ("USFS" or "Forest Service"). The land-for-land exchange was proposed in 1985 and involved approximately 1,631 acres of disjointed land owned by the Leavell Properties, Inc. in exchange for 420 acres of federal land located at the base of the Wolf Creek Ski Area. See Exhibit A. The Land Exchange was the brain child of Charles Leavell. See April 19, 2006 deposition of Pete Leavell, 10:5-11:1, Exhibit B. Charles Leavell put his son, Pete in charge of the Land Exchange and, in particular, in charge of the political aspects of the trade.1 Id. 11:2-25. Kingsbury Pitcher supported the Land Exchange and wrote a letter to the Forest Service Supervisor memorializing that support. Exhibit C. Initially, the land trade was rejected ­ Regional Forester James F. Torrence selected the "No Action Alternative" proposed by the applicant as set forth in the Decision Notice and Finding of No Significant Impact dated February 20, 1986 ("First Decision Notice"). Exhibit A. After further consideration, and in particular in exchange for certain concessions by Leavell Properties, Inc., the decision was reversed and the land exchange was approved by Decision
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Charles Leavell died several years ago and his son, Pete, sold his interest in the Joint Venture soon after his father's death.

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Notice and Finding of No Significant Impact dated March 6, 1986 ("Second Decision Notice"). Exhibit D. In the Second Decision Notice, the Forest Service explained that the no action alternative originally selected had been based on concerns that development of the federal lands could be in derogation of the Wolf Creek Ski Area and other adjacent National Forest System lands. Id. To mitigate the potential negative impact, Leavell Properties, Inc. had since agreed to measures that alleviated this concern. Id. Therefore the Forest Service withdrew the First

Decision Notice and approved the proposed Land Exchange, subject to an approved appraisal of the federal and non-federal lands, and receipt from the Leavell Properties, Inc. of an easement providing for protection of the land. Id. 2 Ultimately, the appraisal of the federal tract yielded a greater value than for the property owned by Leavell Properties, Inc. See April 14, 2006 deposition of Bob Honts, 747:3-12, Exhibit E. Accordingly, the size of the tract was reduced from approximately 420 to 300 acres. Id. In that process, valuable frontage along Highway 160 was lost. Id. III. STANDARD OF REVIEW The motion in limine is a creature of neither the Federal Rules of Civil Procedure ("F.R.C.P") nor the Federal Rules of Evidence ("F.R.E."). First Savings Bank, F.S.B. v. U.S. Bancorp, 117 F. Supp.2d 1078, 1082 (D.Kan.2000); U.S. v. 215.7 Acres of Land, More or Less, 719 F. Supp. 273, 275 (D.Del. 1989)("[t]he Federal Rules of Civil Procedure do not explicitly authorize in limine rulings. Rather the court may make such rulings pursuant to its inherent authority to manage the course of trials."). Courts have held that such motions do, however, aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain
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As a result, the Scenic Easement and Amended Scenic Easement discussed in prior briefs were granted to the Forest Service.

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forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of the trial. See First Savings Bank, 117 F. Supp.2d at 1082; see also Palmieri v. Defaria, 898 F.3d 136, 141 (2d Cir. 1996); In re Hardesty, 242 B.R. 712, 714 (D.Kan. 1999). They also may save the parties time, effort and cost in preparing and presenting their cases. First Savings Bank, 117 F. Supp.2d at 1082; Deghand v. Wal-Mart Stores, Inc., 908 F. Supp. 1176, 1180 (D.Kan. 1997). The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. First Savings Bank, 117 F. Supp.2d at 1082; In re Hardesty, 242 B.R. at 714. As a general rule, a federal district court is limited to excluding, in limine, only such evidence that is clearly inadmissible on all possible grounds. Crosson v. Caermark, Inc., 212 F. Supp.2d 875, 880 (N.D.Ill.2002); see also Knotts v. Black & Decker, Inc., 204 F. Supp.2d 1029, 1034 fn. 4 (N.D. Ohio 2002). Even so, relevant evidence may be excluded in order to promote the administration of the judicial process, and the discretion of the trial court will not be disturbed absent a manifest injustice to the parties. Thewatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987). Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. First Savings Bank, 117 F. Supp.2d at 1082. Denial only means that the court cannot decide admissibility outside the context of trial. Id.; see also Knotts, 204 F. Supp.2d at 1034 n. 4 ("[d]enial of a motion in limine merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine.").

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IV. APPLICABLE RULES OF EVIDENCE A. FEDERAL RULE OF EVIDENCE 401 F.R.E. 401 defines "relevant evidence" as follows: `Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. B. FEDERAL RULE OF EVIDENCE 402 F.R.E. 402 provides as follows: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. C. FEDERAL RULE OF EVIDENCE 403 F.R.E. 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. V. ARGUMENT The Ski Corp. and its representatives have alluded at various times that the Land Exchange was tainted by corruption, illegality, unethical conduct, or other improper dealings. The Ski Corp.'s allegations center on the two separate Decision Notices identified above and attached hereto as Exhibits A and D. For example, during the deposition of Davey Pitcher, Mr. Pitcher implied that the Land Exchange was somehow illegal or suspect:

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Q:

Now, for your benefit, if you want to, I've got the first and the second decision memo. Now, have you taken the position that there was something illegal, improper, untoward, possibly illegal or influence peddling because the Forest Service...originally rejected the land trade and then two weeks later the same individual changed his mind? I've always questioned that process. . . .

A:

Q:

Now, is it your contention that there's something illegal or improper or that there's influence peddling because on February 20th he turned it down, and two weeks later he added additional requirements and accepted the land trade? I believe that the decision notice speaks for itself in--in some respects to that regard, that in the ­ in the first decision notice, at the end there's a statement about a 45day period for filing a notice of appeal, and yet the decision was changed within that 45-day period. What's improper about that? I don't believe it follows the normal procedural policy. Well, does that indicate influence peddling or illegal behavior or collusion? We've asked for many years what happened during that two-week period, and never really had a satisfactory answer from either the Forest Service or the developer. You just don't like the answers you're getting? I can't speak to that.

A:

Q: A: Q: A:

Q: A:

See March 29, 2006 deposition of Davey Pitcher at 60:22-25; 61:1-5; 64:6-25; and 65:1-4, Exhibit F. In addition, the Ski Corp. has made similar allegations and innuendo of impropriety surrounding the Land Exchange to the media. And, although the Land Exchange was borne of

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the vision of Charles Leavell, the rumors circulated by the Ski Corp. have focused primarily on Red McCombs. Initially, Ski Corp. representatives only hinted that Mr. McCombs had used improper influence to push through the land trade. For example, on April 28, 2004, the Denver Post published a news article stating: "[Davey] Pitcher said he worries that a politically wellconnected McCombs could push his family off the mountain. After all, he said, McCombs acquired Alberta Park in 1986 in a land swap with the Forest Service that was denied by local foresters but approved in Washington." Exhibit G. Davey Pitcher was again quoted in a Monday, May 26, 2005, Associated Press article as follows: Davey Pitcher says McCombs unsuccessfully tried to dodge environmental laws by using political connections to get the road approved in federal legislation. He also said he thinks politics explains why the Forest Service reversed itself in 1986 and approved swapping some of its land at Wolf Creek for some of Leavell's property in a neighboring county ­ a decision that helped clear the way for the base village proposal. Exhibit H. The clear tenor of the statement is not just that Mr. McCombs acquired the property through ordinary politics, but rather dirty politics. As time passed, however, the Ski Corp.'s accusations became more strident, more misleading, and more bizarre. For example, on March 7, 2006, the Daily Sentinel published an article quoting Davey Pitcher: The feud between the Pitchers and McCombs has several fronts including the size of the development and what the Pitchers see as an illegal land swap in 1986 wherein McCombs and his partners initially got the land in a disputed swap with the U.S. Forest. "The swap was turned down once and then two weeks later it was approved," Davey Pitcher said with frustration in his voice. "They got 300 acres right in the middle of our permit area. The development would come right

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up to Tower 9 on our Alberta Lift. How are we supposed to run a ski area with a development in the middle of it like that?"3 Exhibit J (emphasis added). In addition to the sinister suggestion that the land swap was "illegal," Mr. Pitcher's remarks create a false impression that the Alberta Lift was in existence at the time of the land exchange and that Ski Area land was somehow infiltrated by the Joint Venture's development. The opposite is true. The Ski Corp.'s Alberta Lift was built more than ten years after the land exchange and stands on property that is owned by the Joint Venture. As part of the SURP Agreement and related documents, the Joint Venture conveyed an easement over its property to the Ski Corp. for the purpose of constructing the Alberta Lift: "Grantor [Leavell-McCombs Joint Venture] hereby conveys to Grantee [Wolf Creek Ski Corporation], four easements appurtenant to the Grantee Property and the lands covered by the Permit, for use as ski trails (collectively, the "Ski Easements") and one easement for the construction, maintenance and use of a ski lift and lift terminal (the `Alberta Lift Easement')." Exhibit I, p. 1, ¶ 1 (emphasis added). See also October 29, 2004 deposition of Kingsbury Pitcher 35:6-37:9, Exhibit K. (describing the proposed easement over Joint Venture land as necessary for construction of the Alberta Lift). Thus, not only is the Alberta Lift located on land owned by the Joint Venture, it is also (by necessity) built on land that was acquired in trade from the Forest Service. Accordingly, Davey Pitcher's prejudicial remarks are self-serving misdirection intended to divert attention from the Ski Corp.'s own wrong doing. Notably, Mr. Pitcher's comments to the press fail to mention the fact that his father was consulted about the land exchange well in advance and supported it via letter to the USFS.
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Note, the Alberta Lift is built on land that the Joint Venture conveyed to the Ski Corp. pursuant to the SURP Agreement and related Easement Grant and Agreement. See Exhibit I, Easement Grant and Agreement, p. 1, ¶ 1 ("Grantor [Leavell-McCombs Joint Venture] hereby conveys...one easement for the construction, maintenance and use of a ski lift and lift terminal (the `Alberta Lift Easement')." As Joint Venture land, the land on which the Alberta Lift stands was obviously acquired as part of the initial land trade. Thus, the Alberta Lift is in the middle of the Joint Venture's fee simple property, and not, as Davey Pitcher stated to the Daily Sentinel, the reverse.

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Exhibit C. Regardless of the true facts, and even after prolonged discovery, including FOIA requests to the Forest Service, the Ski Corp. has not identified, produced, or disclosed any real evidence in support of these spurious allegations, nor does the Ski Corp. make these allegations formally in any pleadings. The charges are the pure invention of suspicion and a cunningly crafted media campaign portraying the Joint Venture as the evil Goliath to the Ski Corp.'s heroic David. See, e.g., Exhibit G (describing Red McCombs as a "sports magnate, part of the nation's corporate elite" who is "stepping on the toes" of the Ski Corp. while the Pitchers are portrayed as descendants of "heroic pathfinder, Otto Mears" a "Russian immigrant who rode with Kit Carson during the Civil War.") Because these baseless allegations have become second nature to the Ski Corp. and fall easily from Davey Pitcher's lips without regard to accuracy, the Joint Venture is understandably concerned that they will be carelessly repeated at trial. It is axiomatic that all parties before the Court have a right to a fair trial based on the evidence. F.R.E. 402 provides that all relevant evidence is admissible. Under F.R.E. 401, evidence is relevant if it tends to make a material fact "more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. See Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 539 (10th Cir. 1994) (upholding exclusion of evidence where "its probative value was slight, while the potential for unfair prejudice is obvious"); see also U.S. v. Espinoza, 244 F.3d 1234 (10th Cir. 2001) (holding that evidence should be excluded, even if it has some tangential relevance, when any probative value it may have is substantially outweighed by its prejudicial effect). Rule 401 requires that the proposition aimed at by the evidence must be "of

consequence" in the action under the applicable substantive law. Stated another way, Rule 401's

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definition of relevancy incorporates notions of both materiality and probativity.

U.S. v.

McVeigh, 153 F.3d 1166 (10th Cir. 1998) (cert. denied), citing 1 Kenneth S. Broun, et al., McCormick on Evidence § 185, at 774-75 (John William Strong ed., 4th ed.1992); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure §§ 5164, 5165, at 37-38, 48-50 (1978). In sum, in order to comply with Rule 401, evidence must tend to increase or decrease the apparent probability of some proposition put in issue by the pleadings under the applicable substantive law. Here, the Ski Corp.'s Amended Complaint does not make any allegations that the Land Exchange was tainted by corruption, illegality, influence peddling, or other improper dealings. Likewise, the Ski Corp.'s statement of claims and defenses in the Pretrial Order does not contain such allegations, nor do any other pleadings filed by Ski Corp. in this litigation. Accordingly, any allegation or innuendo that the Land Exchange was tainted by impropriety is not of consequence to this action and therefore cannot be relevant. Such allegations do not tend to increase or decrease the probability of any proposition put in issue by the pleadings under the applicable substantive law. Moreover, any suggestion that the Land Exchange was tainted by corruption, illegality, unethical conduct, or other improper dealings should be precluded under Rule 403, because the nonexistent probative value of such unfounded statements is substantially outweighed by the danger of unfair and irreparable prejudice to the Joint Venture. Specifically, as noted above, there is no basis whatsoever for any such assertions. The Ski Corp. has failed to identify, produce, or disclose even a scintilla of evidence in support of such assertions. These accusations are apparently designed only to inflame prejudice and bias the jury against the Joint Venture.

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Spurious allegations and innuendo have no place in a fair trial of the issues before this Court. The Joint Venture has a right to a fair and unbiased trial without unnecessary inflammatory innuendo, and therefore the Joint Venture respectfully requests that the Ski Corp. be precluded from mentioning, referring to, interrogating concerning, or utilizing other efforts to convey such innuendo to the jury. Were these spurious allegations to be made known to the jury in any of the manners mentioned above, it would be highly improper and prejudicial. Even if the Court were to sustain an objection, strike the matter, and/or instruct the jury to not give consideration to the same, the bell could not be un-rung, so to speak. VI. CONCLUSION WHEREFORE, the Joint Venture respectfully requests the Court to instruct the Ski Corp., through the Ski Corp.'s counsel, and its counsel individually, not to mention, refer to, interrogate concerning, voluntarily answer, or attempt to convey before the jury, at any time during these proceedings, in any manner, either directly or indirectly, the subject matter as stated above, and not to make any reference or inference to the fact that this motion has been filed, argued, or ruled on by the Court; and further that Ski Corp.'s counsel be instructed to warn and caution each and every witness appearing in Ski Corp.'s phase of this litigation to strictly comply with the rulings of the Court. A proposed Order is attached hereto.

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Respectfully submitted this 21st day of March, 2008 BERG HILL GREENLEAF & RUSCITTI LLP

__s/ Kim A. Tomey_____________ George V. Berg, Jr. Kim A. Tomey 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-1601 Email: [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of March, 2008, I electronically filed the foregoing DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY OR ARGUMENT STATING OR SUGGESTING THAT THE 1984-86 LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY, OR IMPROPER INFLUENCE with the Clerk of the Court using the CM/ECF system which will send notification to such filing to the following e-mail addresses, Andrew R. Shoemaker Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Jim Moriarty Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Cynthia A. Mitchell Hogan & Hartson LLP 1470 Walnut Street, Suite 200 Boulder, CO 80302 [email protected] Robert D. Erben Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] David Krivit Moriarty Leyendecker & Erben PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 [email protected] Michael E. McLachlan McLachlan & Underell, LLC 813 Main Avenue, Suite 308 Durango, CO 81301 [email protected]

____s/ Linda D. Smith____________

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