Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 03/23/2006

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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, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

WOLF CREEK'S OPPOSITION AND RESPONSE TO MOTION FOR SURREPLY

Wolf Creek Ski Corporation, Inc. ("Wolf Creek"), by and through undersigned counsel, hereby opposes and responds to the Leavell-McCombs Joint Venture's Motion for Leave to File Surreply as follows: 1. Over one month after Wolf Creek filed its Reply in support of Motion for

Summary Judgment on Fraud and Negligent Misrepresentation claims, the Joint Venture informed Wolf Creek that it intended to file a surreply on two issues. With respect to the first issue, Wolf Creek agreed that it erroneously cited the clear and convincing evidence standard and immediately filed a Notice of Correction. 2. In that Notice, Wolf Creek acknowledged and corrected its error, and it also

briefly explained to the Court ­ as set forth in the Reply ­ that regardless of the standard of proof, the Joint Venture had provided no probative evidence sufficient to demonstrate that Wolf Creek

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intended to breach the 1999 Agreement when it entered into it or that Wolf Creek misrepresented any fact prior to executing the 1999 Agreement. 3. No new arguments were made, no new cases were cited, and nothing was

improper in the brief Notice. Thus, no surreply is necessary, as Wolf Creek corrected the error. Nonetheless, the Joint Venture filed a surreply to re-emphasize Wolf Creek's error, and to attempt to suggest that intent is irrelevant to the Court's analysis. 4. The Joint Venture attempts to recast the correct fraud standard set forth in Wolf

Creek's original Motion at footnote 3. See Surreply at 3. In doing so, the Joint Venture mischaracterizes the elements of fraud as set forth in the Coors case (which is not a fraud in the inducement case) and argues that affirmative intent is irrelevant.1 However, where the claim is fraud in the inducement, a promise is only actionable as fraud if the promise was made with a present intent not to perform. See Reply at 5, 10; see also Joint Venture's Response at 23 ("when coupled with a present intention not to fulfill the promise"). There is absolutely no evidence (only conclusory allegations and speculation) that Kingsbury Pitcher (or anyone else at Wolf Creek for that matter) entered into the 1999 Agreement with the present intent not to perform. As such, the claim must be dismissed, and numerous courts have agreed on summary judgment. Reply at 5, 10 (citing Strum v. Exxon Co., USA, 15 F.3d 327 (4th Cir. 1994); Mills v. Damson Oil Corp., 931 F.2d 346 (5th Cir. 1991)).

The elements of fraud as set forth in Coors are as follows: "The defendant made a false representation of a material fact, knowing that representation to be false; that the person to whom the representation was made was ignorant of the falsity; that the representation was made with the intention that it be acted upon; and, that the reliance resulted in damage to the plaintiff." Coors v. Security Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005). 2
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5.

The Joint Venture attempts to confuse the issue of intent not to perform by

arguing that Kingsbury Pitcher (on behalf of Wolf Creek) could have committed fraud if he "was aware that he did not know whether [the statement] was true or false." See Surreply at ¶ 4. To the extent that the Joint Venture is suggesting that a promise to perform can be actionable as fraud if the promisor did not know whether or not he would perform, there is no law to support this. Moreover this argument is new. The Joint Venture's previous arguments regarding Kingsbury Pitcher's purported awareness that he did not know whether something was true or false related to predictions of future events. See Joint Venture's Response at 25. As to that argument, as set forth in the Reply, a prediction (for example, regarding Forest Service approval) is not a fact. A prediction is just that, a prediction (with no certainty). See Reply at 11-16. Further, the Joint Venture has admitted that it knew there were no guarantees, and it even had advice of counsel on this issue. See id. at 12, 15-16. 6. The law cited in Wolf Creek's briefing is crystal clear that there must be evidence

of an actual present (i.e., at the time the contract was executed) intent to breach. The Coors case provides no support for the Joint Venture's proposition. The Joint Venture must come forward with evidence to support an actual present intent not to perform. Here, the Joint Venture has not done so. As such, there can be no question of fact regarding intent. 7. The Motion for Surreply is unjustified, and it distorts the law and the arguments.

As such, it should be denied. To the extent that the Court considers it, the Court should also consider the arguments made herein, which also were previously made in Wolf Creek's Motion and Reply.

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Dated this 23rd day of March, 2006. HOGAN & HARTSON L.L.P.

By:

s/Andrew R. Shoemaker Andrew R. Shoemaker Denise D. Riley 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 23rd day of March, 2006, I electronically filed the foregoing WOLF CREEK'S OPPOSITION AND RESPONSE TO MOTION FOR SURREPLY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: George V. Berg: Sally P. Berg: Melissa M. Heidman: Kathleen M. Morgan: James Robert Moriarty: Kimberly A. Tomey: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

s/Andrew R. Shoemaker

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