Lawsuit moved to Steamboat

Triple Peaks' case against American Skiing originally filed in Denver

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— Tim and Diane Mueller's court battle to acquire the Steamboat Ski Area has moved from Denver to Steamboat Springs.

Judge Richard Doucette has signed an order granting a motion by attorneys for Triple Peaks LLC seeking to have its lawsuit against American Skiing Company shifted from federal court in Denver to district court in Steamboat Springs.

If the suit is eventually tried here, it would be heard by the judge. Triple Peaks is not seeking a jury trial.

Triple Peaks is the formal name for a group of investors formed to purchase Steamboat from ASC. The group signed a contract to buy the ski area for $91.4 million on Jan. 24. However, ASC backed out of the deal on March 26, opting instead to sell its Heavenly, Calif., ski area to Vail Resorts. ASC has been intent on selling one of its major resorts since May 2001 in an effort to get out from under crippling debt.

Triple Peaks filed suit in federal court April 5, alleging that ASC unlawfully breached the sale contract and asking the court to enforce the contract and award two types of monetary damages. The suit did not specify the amount of damages being sought.

Tim Mueller has said he and his investors aren't merely seeking to get more money out of ASC their intent is to force the sale of the ski area.

Now, Triple Peaks' attorneys at the Denver firm of Rothgerber, Johnson and Lyons have successfully filed to have the jurisdiction of the suit changed from Denver to Steamboat. Attorneys for ASC could always file to have the trial returned to Denver.

Tim Mueller said Thursday the suit filed in court in Steamboat is virtually the same complaint as the original.

"The thrust of the suit hasn't changed," Mueller said.

Mueller said the reason for the change had to do with a technicality that arose after Triple Peaks broadened the suit to include a subsidiary of ASC and a local entity, Walton Pond Apartments, among the defendants.

Essentially, Triple Peaks overlooked the fact that it had contracted to acquire the apartments when it filed the lawsuit in Denver and omitted the other two entities from the list of defendants.

ASC's real estate division, American Skiing Company Resort Properties Inc., is the majority owner of the apartments, which it uses for employee housing. A local businessman, Curt Weiss, owns a minority share of the apartments and his company, Central Park Management, manages them. The naming of Walton Pond Apartments and ASCRPI as defendants is incidental to the major points of the suit. But Triple Peaks attorneys were concerned it was enough to cause a federal judge to view jurisdiction in the matter differently.

"Our attorneys felt the federal judge would not accept (the suit) because of diversity (issues among the number of defendants)," Mueller said.

About the same time Triple Peaks was filing to have the suit moved, ASC filed a motion in federal court in Denver to have its liability in the dispute limited to the $500,000 it had agreed to pay as a "walk away fee" to get out of the sale agreement.

"Of course, that's the opposite of what we are seeking," Mueller said.

Wherever the suit is heard, it is likely that the Triple Peaks suit and ASC's brief seeking to limit its damages would be joined.

Mueller said he wants to avoid a battle over the location of a trial.

"We don't want a big, drawn-out argument over jurisdiction," Mueller said. "Our attorneys decided it should be filed (in Steamboat)."

Attempts to reach an ASC spokesman Thursday afternoon were unsuccessful.

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