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 JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW ______________________________________________________________________________ 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's efforts to acquire an access road to its property (the "Village Property") via lobbying or legislative efforts violates the SURP Agreement or federal environmental law. In support of this motion, the Joint Venture states as follows: Certificate of Conferral: Pursuant to D.C.Colo.LCivR. 7.1A, counsel for the Joint Venture has conferred with opposing counsel to resolve the matter disputed herein and such counsel has indicated that the Ski Corp. will oppose the requested relief.

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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. The Ski Corp.'s 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 access road connecting to the Tranquility Access Road and from thence leading onto and into the Village Property (the "Village Access Road"). The Ski Corp. has leveled a dizzying number of other derogatory accusations at the Joint Venture 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 Joint Venture's motions in limine are a result of the Ski Corp.'s public campaign. In particular, the influence peddling charges that the Ski Corp. has directed at Mr. McCombs and the Joint Venture are not germane to this case. Among the more tempered variations of the aspersion is the assertion that the Joint Venture's lobbying efforts to obtain the Tranquility Access Road breached § 3.07(b) of the SURP Agreement as well as the National Environmental Policy Act ("NEPA"). But § 3.07(b) of the SURP Agreement only requires the

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Joint Venture to comply with environmental laws applicable to land owned in fee by the Ski Corp; not to federally owned lands, which are the only lands governed by NEPA. Moreover, the Ski Corp. does not own any land in fee anywhere near the site of the proposed Tranquility Access Road. As for violating NEPA, nothing in NEPA prevents a landowner surrounded by federal forest lands from gaining access to its property via legislative means. In short, there is no basis in law or fact for the Ski Corp.'s allegations on this point. Lacking any foundation in truth, the allegations lack relevance. They do not make the existence of any material fact herein more or less probable and are therefore inadmissible under Fed.R.Evid. 402. In fact, they are merely part of the Ski Corp.'s ongoing efforts to blacken the Joint Venture's reputation at any cost to distract from the Ski Corp.'s own wrongdoing herein. The trial should not be a forum for the airing of unrelated influence peddling charges that have dominated the press and provided fodder for rallying pubic support. In addition to being

untruthful, they are unfairly prejudicial pursuant to Fed.R.Evid. 403 and are impermissible character evidence excluded by Fed.R.Evid. 404. II. RELEVANT FACTS. Section 3.07(b) of the SURP Agreement provides in pertinent part: (b) L-M shall comply with all Environmental Laws applicable to, relating to or with respect to the Wolf Creek Land. Exhibit A, § 3.07(b) (emphasis added). The term "Wolf Creek Land" is a defined term in the SURP Agreement: WHEREAS, Wolf Creek is the owner and operator of the Wolf Creek Ski Area (the "Ski Area") as the holder of a special use permit dated January 16, 1997 (the "USFS Permit") issued by the United States Forest Service ("USFS"). The real property covered by the USFS Permit is described on Exhibit "A" attached hereto, and referred to herein as the "USFS Permit Area." Wolf Creek is 3

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also the fee simple owner of the real property described on Exhibit "B"1 attached hereto and referred to herein as the "Wolf Creek Land." Wolf Creek intends to construct and operate ski lifts and associated ski trails as part of the Ski Area on the Wolf Creek Land; and Id., p. 1 (emphasis added) 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 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
1

There is no Exhibit B to the SURP Agreement. However, the language of this paragraph makes absolutely clear that the Wolf Creek Land is separate and distinct from land owned by the Forest Service being used by the Ski Corp.

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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."). IV. APPLICABLE RULES OF EVIDENCE A. FEDERAL RULE OF EVIDENCE 401 "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. Fed.R.Evid. 401. B. FEDERAL RULE OF EVIDENCE 402 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.
for its Ski Area operation, which is defined as "USFS Permit Area." Id.

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Fed.R.Evid. 402. C. FEDERAL RULE OF EVIDENCE 403 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. Fed.R.Evid. 403. D. FEDERAL RULE OF EVIDENCE 404 (a) Character evidence generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion [except in limited situations not applicable here]. (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Fed.R.Evid. 404. V. ARGUMENT A. THE JOINT VENTURE'S LEGISLATIVE EFFORTS TO OBTAIN ACCESS TO THE VILLAGE PROPERTY DO NOT VIOLATE NEPA, OR ANY OTHER FEDERAL ENVIRONMENTAL LAWS. Under the Alaska National Interest Lands Conservation Act ("ANICLA"), landowners such as the Joint Venture whose property is located within the boundaries of the National Forest System are entitled access to their property that is "adequate to secure to the owner the reasonable use and enjoyment thereof." 16 U.S.C. § 3210(a). Since acquiring the property in

trade from the Forest Service in 1987, however, the Joint Venture has been denied such access. 6

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Indeed, currently the only access to the property is via FSR 391, a single lane, dirt road that is closed during the winter season. See Exhibit B, p. 8, ¶¶ 30-31 (judicial findings of fact by Colorado District Judge O. John Kuenhold). Accordingly, the Joint Venture's legislative attempts to acquire that to which it is legally entitled cannot be deemed to violate NEPA or any other federal environmental law. Furthermore, the Joint Venture has an equal First Amendment right to pursue legitimate business interests through congressional lobbying efforts. F.T.C. v. Superior Court Trial

Lawyers Ass'n., 493 U.S. 411, 426, 110 S. Ct. 768, 777 (1990). Therefore, the exercise of this right cannot offend federal law, nor can anything in the SURP Agreement be construed as a waiver of that right. Additionally, the Ski Corp. itself has actively engaged in similar lobbying efforts. In fact, according to public sources, during the four years from 2004-2007, the Ski Corp. outspent the Joint Venture seven times over with respect to lobbying fees paid to its attorneys. See Exhibit C (Ski Corp.'s 2004-2007 lobbying expenses = $640,000.00) and D (Joint Venture's 2004-2007 lobbying expenses = $90,000.00). Thus, the Ski Corp.'s accusations in this regard are the height of sanctimony. Even assuming for the sake of argument however, that the Joint Venture's lobbying activities violated federal law, only this Court or expert opinion could establish such a violation. The Ski Corp., however, has never briefed this issue for the Court nor indeed has it informed the Court at any point what federal law has been violated. Nor has it designated an expert on federal environmental law to do so. In the absence of such guidance, it is obvious that the Ski Corp. never intended to prove up this claim at all. Rather, this argument represents the kind of shotgun

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approach that has characterized the Ski Corp.'s efforts to hinder and delay the Joint Venture from accessing and developing its property. B.
DOES NOT REQUIRE THE JOINT ENVIRONMENTAL LAWS WITH RESPECT TO THE LAND AT ISSUE.

THE SURP AGREEMENT

VENTURE

TO FOLLOW

For argument sake, even assuming that the Joint Venture's actions circumvented environmental laws, the SURP Agreement does not require the Joint Venture to follow environmental laws with respect to the land at issue. The Ski Corp. cites Section 3.07(b) of the SURP Agreement as the basis for its claim that the Joint Venture "has pursued specific legislation to circumvent environmental laws." Amended Complaint, ¶ 32. There is no dispute that the activity that the Ski Corp. claims to be in violation of § 3.07(b) is the Joint Venture's attempt to obtain an access road to its property via legislative rider. See e.g. Exhibit E (letter from Davey Pitcher to Senator Knighthorse Campbell stating: "The problem arises from Mr. Honts of the Village at Wolf Creek trying to obtain approval of this project,2 not through the United States Forest Service and the due process of NEPA, but through an amendment (rider) to either the Energy Bill or the Farm Bill..."). Any access road to the Joint Venture's property would of necessity run from State Highway 160 over federally owned land. See Exh. C, p. 8, ¶ 29 (findings of fact by Colorado District Judge O. John Kuenhold). Section 3.07(b) of the SURP Agreement does not require the Joint Venture to comply with environmental laws applicable to federally owned land. Exh. A, § 3.07(b). "Wolf Creek Land" is a defined term in the SURP Agreement as "fee simple" land owned by the Ski Corp. Exh. A, p. 1, ¶ 1. Accordingly, the Joint Venture's lobbying efforts to establish an access road over federal lands does not offend § 3.07(b) of the SURP Agreement.

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Plaintiffs will likely argue that the phrase "applicable to, relating to or with respect to" in § 3.07(b) is broad enough to extend to any activity whatsoever affecting the area. But "the words `relating to' are also subject to a narrow construction if a narrow construction is what [the parties] intended." Palmer v. St. Joseph Healthcare P.S.O., Inc., 134 N.M. 405, 413, 77 P.3d 560, 568 (N.M.App. 2003) citing Cipollone v. Liggett Group, Inc, 505 U.S. 504, 529, 112 S. Ct. 2608, 2624 (construing the words "relating to smoking and health" in Section 5(b) of the Federal Cigarette Labeling and Advertising Act of 1965 narrowly, in concluding that the phrase "[did] not encompass the more general duty not to make fraudulent statements"). Here, the language of §3.07(b) itself reveals that the phrase was not meant to be broadly construed. Rather, had the parties intended to extend the requirements of § 3.07(b) to federal land, they would have included "USFS Permit Area" within its ambit. Instead, by its terms §3.07(b) applies only to "Wolf Creek Land."3 In addition, if a broad interpretation was intended, the phrase "applicable to, relating to or with respect to" would have been prefaced by the phrase "in any way." Since the language of §3.07(b) specifically excludes federal lands and has no indication that a broad construction was intended, the Joint Venture's lobbying efforts do not offend the SURP Agreement. C. THE SKI CORP.'S ALLEGATIONS THAT THE JOINT VENTURE'S LEGISLATIVE EFFORTS VIOLATE THE SURP AGREEMENT, NEPA, OR ANY OTHER FEDERAL ENVIRONMENTAL LAWS LACK RELEVANCE, ARE UNFAIRLY PREJUDICIAL AND ARE INADMISSIBLE CHARACTER EVIDENCE. Given that the Ski Corp.'s allegations lack truth, they must also as a matter of necessity lack relevance under Fed.R.Evid. 402.
2

F.R.E. 402 prohibits the admission of irrelevant

The only "project" that requires NEPA review is the access road permit.

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evidence.

"Relevant evidence" is defined as "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." Fed.R.Evid. 401. Here, the fact that the Joint Venture tried to use legislative efforts to obtain an access road has no bearing on the Ski Corp.'s breach of contract claims that the Joint Venture must build a covered road. Likewise, it has no bearing on the Ski Corp.'s defenses to the Joint Venture's claims of breach of contract and fraud. Even assuming, for argument sake, that these allegations were relevant, they are inadmissible pursuant to F.R.E. 403, which prohibits otherwise relevant evidence, "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . . " Fed.R.Evid. 403. Here, the danger is that the Ski Corp. will succeed in turning the strict factual inquest regarding breach of contract, into a public relations campaign with the jury regarding the morality of the Joint Venture's legislative actions. This is likely to confuse the jury regarding the true factual issues to be determined, without any reciprocal factual relevance. Finally, the allegations at issue are analogous to character evidence of an individual, which is strictly limited by F.R.E. 404. "In civil cases, Fed. R. Evid. 404 embodies what amounts to a blanket rule excluding character evidence offered circumstantially to prove conduct on a particular occasion. The rule means that civil litigants cannot prove specific acts in support of the broad proposition that they show what kind of person the plaintiff or the defendant is, and

3

Moreover, the boiler plate nature of the provision reveals that this was not some carefully crafted provision meant to protect the environment. Rather, it was intended to protect the Ski Corp. for liability from the improper release of hazardous waste.

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that accordingly the plaintiff or the defendant did or did not do one thing or another that bears on the case." Christopher B. Mueller and Laird C. Kirkpatrick, FEDERAL EVIDENCE § 4:38 (3rd Ed.) (2007). Here, the totality of the public comments reveals a campaign by the Ski Corp. against the character of the Joint Venture. The intent appears to create an impression in the minds of the jury, that lawful and creative business actions on the part of the Joint Venture, are in fact part of a pattern of deceptive and corrupt activities. As a result, this tactic falls squarely within the prohibitions of Fed.R.Evid.404. 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, that the Joint Venture's lobbying efforts are or were a breach of the SURP Agreement or federal law, or are/were in any way improper, 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 JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW 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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