Second, there are two factors that are weighed against each other : 1) the relative harm to the party asking for the stay, and 2) the likelihood of success on any issue--factual (only gets reversed if terribly wrong), procedural, or legal. Big potential harm + any uncertainly on legal issues usually = stay. Little harm + little chance of success usually = no stay. The whole idea is to avoid having one party pay tons of money, lose property rights, etc. while they get the decision overturned, and the ensuing chaos of restoring the destroyed old status quo. In this case, if there are any questions about the legal issues, the huge harm to POWDR probably means a stay pending appeal, if not by Judge Harris, then by the Court of Appeals.
IMO, granting the current stay plus 60 days after a final order may not be the same as throwing UPCC a bone, but it shows the judge takes UPCC's concerns seriously, unlike some of our buddies on this thread. It's perilous to guess what a judge is thinking, but it's not unreasonable to think he's signaling that MTN might not get everything it wants unless it makes reasonable offers (after all, MTN hasn't made any specific offer at all to settle the case) for leasing the base and purchasing fixed/semi fixed/unfixed assets they're going to need anyway, and POWDR seriously considers and counters the offers. Sure, Cumming says he'll never let Vail operate the resort, but the judge knows he's positioning himself, and he knows that MTN's been sitting back, hoping the judge will buy the idea that POWDR is the unreasonable one, and keeping mum because its pockets are just as deep as Cumming's. The judge's concession to POWDR says Judge Harris doesn't buy Cumming's posturing and wants the parties to stop bluffing each other.
Why hasn't POWDR filed their appeal? Because there's no "final" order to appeal--yet. There are rulings on specific motions, but those rulings don't dispose of all of the issues of the case. Until there's a final order and judgment on the Talisker parties' unlawful detainer claim, POWDR can't appeal the eviction. The same goes for the first set of orders on summary judgment, which were on POWDR's complaint against the Talisker parties. Or, as UPCC said in its motion to certify some orders as final so they could appeal immediately:
They cite conflicting case law, so I'd tend to agree with them. Regardless, the judge didn't decide on rent, damages or fees, so he didn't have to decide the 54(b) motion.
But, for example, my sister has a giant $250,000 tent on her property that for all intents (sorry - I couldn't resist) and purposes is a building that is affixed and is not going anywhere. I could see how that could be ruled as movable and not affixed because after all it is really just a giant tent. On the other hand, a chandelier is bolted to the ceiling and those typically have to stay unless otherwise noted. I conclude that it is likely that lift towers that are bolted into concrete are ruled to be affixed, but because it is not uncommon for lifts to be taken down and repurposed elsewhere that it is within the realm of possibility that they could be ruled not affixed. This is because Utah case law has an example of a similarly silly (on the face of it) ruling.
• GPCC/GPI to provide inventory of items they believe they are entitled to remove from the property 7/9/14
• On site inspection of property 2 days during week of 7/14/14
• Parties to meet and confer in an attempt to narrow dispute as to what property GPCC/GPI can remove by 8/1/14
• Parties file simultaneous briefing on remaining disputed property 8/15/14
• Hearing 8/27/14, 9 a.m.: Bond In The Event Of A Stay
• Parties file simultaneous briefing 8/15/14
• Hearing 8/27/14, 9 a.m.