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Triple Peaks, ASC suit has been moved back to Denver

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— Triple Peaks LLC's lawsuit against American Skiing Co. hasn't been dropped. It's just taking its time finding a permanent home.

Joel Glover, an attorney who is representing Triple Peaks, said this week the suit has been moved back to U.S. District Court in Denver, where it began in April. But there are still jurisdictional issues to be hashed out.

Triple Peaks, led by Tim and Diane Mueller of Vermont, was scheduled to close on the purchase of the Steamboat Ski Area in late March. When ASC pulled the plug on that deal at the last minute, Triple Peaks responded with a lawsuit asking the court to enforce the agreement to sell.

Glover said motions have been filed in the Denver court that are similar to those initiated when the suit was refiled in District Court in Routt County April 24. The suit was originally filed in the federal court in Denver, where it now resides again. Triple Peaks originally agreed to purchase the ski area for $91.4 million from financially beleaguered ASC. Triple Peaks would have owned Steamboat along with the Muellers' other ski areas, Okemo Mountain Resort in Vermont and Mount Sunapee Resort in New Hampshire.

The Steamboat contract was signed Jan. 24, but the suit says the closing date was postponed three times. Finally, on March 26, with the Triple Peaks team sitting in the conference room of a New York law firm, waiting to begin the closing process, ASC backed out of the deal. The general counsel for ASC and a member of its board of directors informed Mueller by telephone they no longer intended to consummate the Steamboat sale. Instead, they planned to sell another of their ski areas, Heavenly Ski Resort in California, to Vail Resorts for $102 million.

In the complaint, Triple Peaks and its attorneys at the Denver law firm Rothgerber Johnson and Lyons point out the contract contains language that allows either seller or buyer to terminate for a separation fee of $500,000, but only if they meet certain requirements. They allege ASC did not meet those criteria.

Attorneys for ASC at Wells, Anderson and Race, also in Denver, see it differently. They interpret the contract language to mean their clients had the right to opt out of the contract for the specified $500,000.

The return of the case to Denver was sought by attorneys for ASC who challenged Triple Peaks' attorneys' rationale for moving it to Steamboat.

In seeking to move the case to Steamboat, Triple Peaks' attorneys said they had not taken into consideration the fact that two Colorado companies, Steamboat Ski and Resort Corp. and Walton Pond Apartments, should have been named as defendants in the suit. They argued the addition of those two Colorado firms would negate qualification of the case for federal court. Walton Pond Apartments provides employee housing for ski area employees.

An attorney for ASC, Mary Wells, countered the case still belonged in federal court. Her firm filed in District Court in May to have the case removed to Denver once more. She contended Ski Corp. and Walton Pond Apartments are merely divisions of ASC, which is incorporated in Delaware and did business from offices in Maine at the time (it has since moved its headquarters to Park City, Utah). An associate of Wells filed a brief in court here contending that attaching Ski Corp. and Walton Pond Apts. to the case was "fraudulent."

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