MFW Assocs., LLC v. Snowdance LLC, No. 175-3-08 Wrcv (Cohen, J., Aug. 3, 2012) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT 

SUPERIOR COURT CIVIL DIVISION 

Windsor Unit Docket No. 175-3-08 Wrcv 

MFW Associates, LLC 

 Plaintiff 

v. 

Snowdance LLC, Snowdance Realty Co., 

Snowdance Ski Co., Snowdance Hotel Co., 

Steven Plausteiner, Susan Plausteiner, 

Richard Frary, Joel Mael, and Textron Financial Corp. 

 Defendants 

Decision on Pending Motions 

 At issue is the identification and prioritization of liens on the proceeds from the sale of 

the Garaventa CTEC High Speed Quad Chairlift to Peak Resorts for the price of $1.35 million 

dollars. Both parties have filed the equivalent of cross-motions for summary judgment. Messier 

v. Metropolitan Life Ins. Co., 154 Vt. 406, 409 (1990); 10A Wright, Miller & Kane, Federal 

Practice and Procedure: Civil 3d § 2720. 

 The main contest in this struggle for control over the remaining assets of the Ascutney 

Mountain Resort is between Steven and Susan Plausteiner and Dan Purjes and Myles 

Wittenstein. The two sides first became involved in the resort in 1998, when the Plausteiners 

became the majority owners of the company that operated the resort (Snowdance LLC) and Mr. 

Purjes and Mr. Wittenstein became the leading figures among the minority owners. Over the 

next decade, both sides invested additional funds in the resort by way of capital contributions, 

unsecured loans, or secured loans until the resort started defaulting on its obligations in 2008. At 

that time, Mr. Purjes and Mr. Wittenstein formed a new company called MFW Associates and 

bought its way into a more secured position on the resort assets. By July 2010, MFW Associates 

had taken control of the resort. All of these transactions are explained in more detail later in this

opinion. 

 Other assets at the resort are owned by three other entities known as Snowdance Realty 

Company, Snowdance Hotel Company, and Snowdance Ski Company. All three of these entities 

are now and have always been owned and controlled by Steven Plausteiner and Susan 

Plausteiner. The present struggle for control is taking place between Snowdance Realty 

Company (Plausteiners) and Snowdance LLC (now controlled by MFW Associates). 

 The first ripples of the dispute began in 2000 when Snowdance LLC became interested in 

purchasing a high-speed quad chairlift for the ski resort. Snowdance LLC principal Steven 

Plausteiner negotiated the purchase of a new chairlift from a manufacturer known as Garaventa 
2 

CTEC for the price of $2.4 million dollars. Snowdance LLC financed the purchase with a $1.4 

million dollar secured loan from CIT Group and a $1 million dollar unsecured loan from 

minority Snowdance investor Dan Purjes. 

 The terms of the secured loan from CIT Group are important. CIT Group agreed to 

provide the purchase-money financing in exchange for a first-priority secured position on the 

chairlift plus a promise that the chairlift would be “kept free” from any junior liens. Snowdance 

LLC was also required to assign its rights under the purchase-and-sale agreement for the chairlift 

to CIT Group. Snowdance LLC thereafter obtained possession of the chairlift and CIT Group 

filed a UCC financing statement to perfect its security interest in the high-speed quad chairlift. 

 In 2001, Snowdance LLC sought additional financing for general resort operations. It 

obtained two lines of credit from Textron Financial Corporation in exchange for security 

interests on condominiums, a hotel, and certain timeshare receivables. 

 In 2005, Snowdance LLC sought additional financing for general resort operations. It 

obtained another line of credit for up to $4.5 million dollars from a mezzanine lender known for 

purposes of this case as PRIF Ascutney in exchange for terms including a high interest rate, 

ownership pledges, and security interests in what can fairly be described as all of the property 

“now owned or hereafter acquired” by Snowdance LLC. Among the collateral described in the 

security agreement was all of the real estate, all of the improvements, and all of the equipment 

including the “ski tows and ski lifts.” 

 Yet there is a question of fact as to whether PRIF Ascutney intended to take a security 

interest in the high-speed quad chairlift in 2005. The factual question arises because of 

Snowdance LLC’s earlier promise to keep the chairlift free from junior encumbrances, taken 

together with several ambiguous references in the security agreement. (The court does not mean 

to suggest that CIT Group could have kept other creditors from taking a security interest in the 

chairlift; only that Snowdance LLC’s earlier promise is relevant to a consideration of its intent in 

entering into the later security agreement, owing to the general desirability of harmonizing 

contractual agreements whenever possible.) One of those references describes the CIT Group 

security interest as a “permitted encumbrance”; another describes the chairlift as property that 

was “leased” from CIT Group rather than “owned” by Snowdance LLC. Yet another ambiguity 

arises from the UCC financing statement, which seems to omit the lift entirely, at least so long as 

the lift was not viewed as “after-acquired” property of Snowdance LLC. Viewing these 

ambiguities in the light most favorable to defendants, the court assumes for purposes of this 

opinion that PRIF Ascutney meant to take a security interest in the chairlift only at such time as 

the chairlift became owned by Snowdance LLC free and clear of the CIT Group note and lien. 

 At about the same time, PRIF Ascutney entered into a “subordination and intercreditor 

agreement” with Textron in which they agreed upon the priority to be accorded their respective 

security interests in the shared collateral. In pertinent part, the parties agreed as between 

themselves that PRIF Ascutney would have the first priority on the “ski tows and ski lifts,” 

without further specificity, and that Textron would have the second priority on those items. 

Although there are numerous other terms in the agreement, the court has not found any specific 
3 

mention in the intercreditor agreement of the CIT Group note and security interest that would 

prevail over the general description of “ski tows and ski lifts.” 

 Snowdance LLC defaulted on most of its obligations in 2008. Majority owners Steven 

and Susan Plausteiner thereafter began exploring the possibility of restructuring the company. 

They eventually generated an understanding that Mr. Purjes and Mr. Wittenstein would form a 

new company called MFW Associates and buy the PRIF Ascutney loan for the reduced price of 

$1.85 million dollars. It was understood that MFW Associates would then grant Snowdance 

LLC forbearances and release the Plausteiners from certain personal guaranties they had given. 

Snowdance LLC would then pay off the lift loan from CIT Group and obtain a release of the CIT 

Group lien in exchange for a settlement price of $250,000. 

 As the deals were coalescing in September 2008, however, the bottom fell out of the 

financial markets. Citing the uncertain marketplace, MFW Associates withdrew from the 

tentative deal to purchase the PRIF Ascutney loan. In an effort to save the deal, the Plausteiners 

rounded up $1 million dollars in financing from “family and friends” in exchange for preferred 

shares in Snowdance LLC. Snowdance LLC then used the cash as a partial pay-down of the 

PRIF Ascutney loan, and MFW Associates purchased the remaining PRIF loan and security 

interests for the reduced price of $850,000. MFW Associates also granted forbearances to 

Snowdance LLC and released the personal guaranties given by the Plausteiners. 

 Snowdance LLC then turned its attention to saving the chairlift from repossession—an 

issue that became suddenly acute when CIT Group filed an action for replevin on October 8th, 

2008. Mr. Plausteiner decided to save the asset from repossession by personally contributing the 

$250,000 needed, but he was uncomfortable making another capital contribution to Snowdance 

LLC. He preferred instead to purchase the loan from CIT Group through one of the other 

companies he owned—Snowdance Realty Company—and to take an assignment of CIT Group’s 

secured interest in the chairlift. 

 Mr. Plausteiner therefore made an offer to CIT Group for Snowdance Realty Company to 

purchase the loan and the security interest for the amount of $250,000. At the arbitration 

hearing, Mr. Plausteiner testified that CIT Group “didn’t mind” how the deal was done so long as 

it received $250,000. In a more recent affidavit, Mr. Plausteiner refined his testimony to be that 

CIT Group “agreed” to this offer. For purposes of this decision, the court assumes that the 

evidence would be sufficient at trial to show an oral agreement on this point. 

 Yet CIT Group then mailed an integrated written agreement to Mr. Plausteiner containing 

the following terms: Snowdance LLC would pay $250,000 by a wire transfer to CIT Group as 

“payment in full” of the outstanding balance, and in exchange, CIT Group would “fully release” 

Snowdance LLC from all of its obligations under the note. CIT Group also agreed to “release” 

its security interest in the high-speed quad chairlift. The integrated written agreement 

furthermore included provisions stating that it was “the entire agreement between the parties,” 

that it “supersede[d] any and all prior agreements” between the parties “whether oral or written,” 

and that no modifications to the agreement would be effective unless made in writing. 
4 

 Mr. Plausteiner signed the agreement on behalf of Snowdance LLC on October 14th. He 

now says that he signed the agreement even though it reflected “prior discussions” he had had 

with CIT Group and that it did not represent his “ultimate agreement” with CIT Group to do the 

deal as an assignment of the note and security interest to Snowdance Realty Company. 

 Mr. Plausteiner thereafter wired the money from a personal account. Mr. Plausteiner has 

since tried to suggest that the wire was untimely under the terms of the written agreement, but 

there is no evidence in the record that CIT Group rejected the payment as untimely. 

 Several weeks later, CIT Group mailed Snowdance Realty Company a UCC financing 

statement reflecting an assignment of the security interest from CIT Group to Snowdance Realty 

Company. Mr. Plausteiner also caused the books of Snowdance LLC to be updated around this 

time to show that the secured loan obligation had been assigned from CIT Group to Snowdance 

Realty Company. 

 About one month later, the Plausteiners arranged for Snowdance LLC to “sell” the highspeed quad chairlift to Snowdance Realty Company for the price of $10. In the bill of sale, Mr. 

Plausteiner represented that Snowdance LLC was the “lawful owner” of the lift and that 

Snowdance LLC had the right to sell it. The sale was allegedly done to make Snowdance LLC a 

more attractive applicant for a loan from the Vermont Economic Development Authority, but the 

VEDA loan was never consummated. 

 At around the same time, Snowdance Realty Company purchased the Textron note and 

security interest. Textron had accelerated its note in 2008 and had been collecting money from 

the secured timeshares receivables and applying those amounts to the outstanding amount due. 

After purchasing Textron’s position, Snowdance Realty Company has been collecting the 

receivables. 

 In July 2010, MFW Associates took control of Snowdance LLC by virtue of the 

ownership pledges given as a term of the mezzanine loan. 

 At about the same time, the parties began an arbitration hearing in New York pursuant to 

an arbitration provision in the Snowdance LLC operating agreement. Mr. Purjes and Mr. 

Wittenstein filed an amended arbitration demand in which they claimed, inter alia, that the 

Plausteiners breached contractual obligations and fiduciary duties of loyalty by purchasing the 

CIT Group note on behalf of Snowdance Realty Company and by “selling” the lift to Snowdance 

Realty Company. Mr. Purjes and Mr. Wittenstein sought remedies including declarations that 

the assignment of the CIT Group note was void and that Snowdance LLC was the record title 

owner of the high-speed quad chairlift “free and clear” from any claims by the Plausteiners or 

Snowdance Realty Company. At the arbitration hearing, the parties litigated these issues. 

 After the hearing, however, Mr. Purjes and Mr. Wittenstein filed a memoranda in which 

they advised the arbitrator that many of their claims were now “moot” or were “going to be 

decided by the Vermont courts in connection with the liquidation of Snowdance’s assets.” Mr. 

Purjes and Mr. Wittenstein therefore asked the arbitrator to decide only the question of the 

ownership of the high-speed quad chairlift (and the question of whether to cancel two unrelated 
5 

promissory notes allegedly given by Snowdance LLC). Mr. Purjes and Mr. Wittenstein 

expressly asked the arbitrator not to make any rulings about the validity of the purported 

assignment of the note and security interest. In their own post-hearing memorandum, Steven and 

Susan Plausteiner asked the arbitrator to rule that Snowdance Realty Company had a valid lien 

on the high-speed quad chairlift by virtue of its purchase of the CIT Group note. 

 In his arbitration award, the arbitrator accepted the request by Mr. Purjes and Mr. 

Wittenstein to withdraw the claims that had become moot or that had become “the proper subject 

of litigation in the state courts of New York and Vermont.” The arbitrator therefore clarified that 

he was deciding only three issues in his award: the ownership of the chairlift (which he awarded 

to Snowdance LLC) and the two unrelated promissory notes. The arbitrator did not make any 

other substantive rulings, except that he did say, at the end of his award, in what appears to be 

boilerplate language, that the award was “in full and complete settlement and satisfaction of any 

and all claims, counterclaims, defenses and set-offs properly submitted to the jurisdiction of this 

Arbitrator and any claim or counterclaim not specifically granted herein is nonetheless deemed 

denied.” Snowdance Realty Company now argues that this last sentence amounted to a ruling 

that it has taken a valid assignment of the CIT note and security interest. 

 At around the same time as the arbitration hearing, Snowdance Realty Company failed to 

file a continuation statement in order to extend the effectiveness of the original UCC financing 

statement on the chairlift. The parties now dispute the legal effect of the lapse. 

 Finally, during this litigation and in anticipation of the sale of the high-speed quad 

chairlift to Burke Mountain, the parties entered into a February 2011 stipulation in which 

Snowdance Realty Company and the Plausteiners agreed to withdraw their objections to the sale 

of the chairlift in exchange for promises that the proceeds from the sale would be placed into 

escrow and that “regardless of the priorities in any documents and any claims by any parties, the 

amounts due under the promissory note from Snowdance [LLC] to Textron subsequently 

assigned to, and now held by, [Snowdance Realty Company] shall have first priority to all funds 

in the Escrow Account.” As it happened, the proposed sale to Burke Mountain fell through, and 

the lift was instead recently sold the Peak Resorts. The sale has now closed, the lift is gone, and 

the sale proceeds are in an escrow account. The parties dispute whether the stipulated agreement 

remains valid as to the promise that Snowdance Realty Company will have first priority to the 

escrowed funds for the amounts due under the Textron note. 

I 

 The issue is identifying which parties have a security interest in the high-speed quad 

chairlift. It makes sense to begin the analysis with the question of whether the original chairlift 

lien that was held by CIT Group as security for its purchase-money financing was assigned to 

Snowdance Realty Company in October 2008 or whether the note and security interest were 

instead released. 

A 

 Snowdance Realty Company argues first that the arbitrator has already ruled that the 

purported 2008 assignment was valid. 
6 

 An arbitration award “has the same force and effect of an adjudication in terms of 

precluding the same parties from relitigating the same subject.” Agway, Inc. v. Gray, 167 Vt. 

313, 316 (1997). An arbitration award is different from a judgment, however, because 

arbitration is a creature of contract. Parties are generally “free to arbitrate some parts of their 

dispute while setting other matters aside.” In re Shelburne Supermarket, Inc., 2010 VT 30, ¶ 20, 

187 Vt. 514. Application of preclusion principles to an arbitration award therefore requires a 

finding that the claim to be precluded was “within the scope of the reference to arbitration.” Id. 

(quoting Restatement (Second) of Judgments § 84 cmt. d (1982)). 

 Here, the evidence shows that Mr. Purjes and Mr. Wittenstein filed a post-trial 

memoranda in which they specifically withdrew their request that the arbitrator decide the 

validity of the 2008 assignment. In response, the arbitrator agreed not to decide the issue, noting 

that it had become the “proper subject” of state-court proceedings in Vermont. The best 

interpretation of this exchange is that the arbitrator agreed to let the claimants withdraw the issue 

from the scope of the reference to arbitration. As such, no preclusion attaches. Shelburne 

Supermarket, 2010 VT 30, ¶ 21; see also 18 Wright & Miller et al, Federal Practice and 

Procedure: Juris. 2d §§ 4413 & 4420 (explaining that preclusion should not attach to issues that 

were “withdrawn before decision”). 

 Snowdance Realty Company responds by citing two Vermont cases from the mid-1800s 

for the position that an award has a preclusive effect as to matters that were “withheld” from the 

arbitrator as opposed to formally withdrawn. See Barker v. Belknap’s Estate, 39 Vt. 168, 181 

(1866); Briggs v. Brewster, 23 Vt. 100, 102 (1850). Snowdance Realty Company appears to be 

arguing that claimants’ withdrawal was not effective because they failed to file a formal motion, 

but the answer here is that the withdrawal was formal enough for the arbitrator to have accepted 

it. No reason exists why preclusion should attach to an issue that was originally submitted to 

arbitration but then withdrawn before the final decision with the approval of the arbitrator. 18 

Federal Practice and Procedure, supra, at §§ 4419–20; Wolf v. Gruntal & Co, Inc., 45 F.3d 524, 

529 & n.6 (1st Cir. 1995) (citing Conforti & Eisele, Inc. v. William J. Scully, Inc., 469 N.Y.S.2d 

400, 400–01 (N.Y. App. Div. 1983)). And to the extent that Snowdance Realty is suggesting that 

the old cases draw a distinction between the words “withheld” and “withdrawn,” the passages 

from which those words are taken merely describe the ordinary rule that claim preclusion 

attaches to issues that should have been raised in an earlier proceeding but were not. Neither 

Barker nor Briggs hold that preclusion should attach when a judge or arbitrator allows an issue to 

be withdrawn from a case before final decision. 

 Snowdance Realty Company finally argues that the arbitrator nevertheless ruled on the 

validity of the purported assignment by denying all of the claims and counterclaims not 

specifically granted in the award. Snowdance Realty Company argues that this statement 

amounted to a denial of every claim asserted in the amended arbitration demand that was not 

expressly ruled on in the award. Such an interpretation cannot be squared with the arbitrator’s 

express statement that he was deciding only the three identified issues. The boilerplate language 

should not be interpreted as expanding the scope of the arbitrator’s decision beyond what he 

expressly said he was deciding. For these reasons, the court concludes that the parties have not 

yet obtained a final ruling on the issue of the validity of the purported assignments of the CIT 

Group note and lien. 
7 

B 

 The next question is whether CIT Group discharged its note and released its lien on the 

chairlift, or whether CIT Group instead endorsed the note and assigned the lien to Snowdance 

Realty Company. The fulcrum of the dispute is whether the terms of the October 2008 

transaction were defined by an integrated written agreement between CIT Group and Mr. 

Plausteiner as a representative for Snowdance LLC or instead by an oral agreement between CIT 

Group and Mr. Plausteiner as a representative for Snowdance Realty Company. 

 As a threshold matter, the parties have argued whether Vermont law or New Jersey law 

governs the interpretation of the integrated written agreement. The court will accept for 

purposes of argument that New Jersey law applies, but the answer really does not matter because 

the approaches of the two states are identical for purposes of this case. Both states agree that 

extrinsic evidence is admissible for the purposes of understanding the circumstances under which 

a contract was made and shedding light upon the meaning of the contract. Downtown Barre 

Development v. C&S Wholesale Grocers, Inc., 2004 VT 47, ¶ 8, 177 Vt. 70; Conway v. 287 

Corporate Center Assocs., 901 A.2d 341, 346–47 (N.J. 2006). More importantly, both states 

also agree that extrinsic evidence cannot be used for the purpose of repudiating a written 

agreement or varying its unambiguous terms. As the New Jersey Supreme Court wrote: 

 Evidence of the circumstances is always admissible in aid of the 

interpretation of an integrated agreement. This is so even when the 

contract on its face is free from ambiguity. The polestar of 

construction is the intention of the parties to the contract as 

revealed by the language used, taken as an entirety; and, in the 

quest for intention, the situation of the parties, the attendant 

circumstances, and the objects they were thereby striving to attain 

are necessarily to be regarded. The admission of evidence of 

extrinsic facts is not for the purpose of changing the writing, but to 

secure light by which to measure its actual significance. Such 

evidence is adducible only for the purpose of interpreting the 

writing—not for the purpose of modifying or enlarging or 

curtailing its terms, but to aid in determining the meaning of what 

has been said. So far as the evidence tends to show, not the 

meaning of the writing, but an intention wholly unexpressed in the 

writing, it is irrelevant. The judicial interpretive function is to 

consider what was written in the context of the circumstances 

under which it was written, and accord to the language a rational 

meaning in keeping with the expressed general purpose. 

Conway, 901 A.2d at 347 (quoting Atl. N. Airlines v. Schwimmer, 96 A.2d 652, 656 (N.J. 1953)); 

accord Downtown Barre Development, 2004 VT 47, ¶ 8 (explaining that extrinsic evidence “may 

not be used to vary the terms of an unambiguous writing”) (quoting Kipp v. Chips Estate, 169 Vt. 

102, 107 (1999)). 
8 

 In this case, the extrinsic evidence shows that Mr. Plausteiner originally negotiated a deal 

on behalf of Snowdance LLC with CIT Group for the discharge of its note and release of its lien 

in exchange for a discounted payment of $250,000. After the PRIF Ascutney deal fell through, 

however, Mr. Plausteiner no longer wanted to put up $250,000 as an additional unsecured capital 

contribution to Snowdance LLC. He instead wanted to take an assignment of the note and the 

security interest on the chairlift, so he asked CIT Group to assign its note and security interest to 

Snowdance Realty Company instead of discharging the note and releasing the lien. CIT Group 

either actually agreed to this proposal or did not care how the deal was done so long as it 

received a timely payment. 

 As the payment deadline approached, however, CIT Group sent Mr. Plausteiner a written 

settlement agreement in which CIT Group agreed to discharge the note and release the lien upon 

timely payment. No mention was made of any assignments or endorsements. Mr. Plausteiner 

signed the integrated agreement on behalf of Snowdance LLC even though he did not think that 

it represented his “ultimate agreement” with CIT Group. 

 Mr. Plausteiner then wired the $250,000 from a personal account. He made accounting 

entries in Snowdance LLC’s books to show that the debt and the security interest had been 

assigned to Snowdance Realty Company. He also filed a UCC financing statement that showed 

that the security interest had been assigned to Snowdance Realty Company. He has testified that 

CIT Group prepared this financing statement and sent it to him. 

 Snowdance Realty Company is not arguing that the written agreement was ambiguous or 

that the meaning of the written agreement was something other than what was written in the 

document. Snowdance Realty Company is arguing instead that the written agreement was not 

the actual agreement between it and CIT Group: that when Mr. Plausteiner wired the money to 

CIT Group, he was doing so pursuant to the alleged oral contract between Snowdance Realty 

Company and CIT Group rather than pursuant to the written agreement. 

 There are a number of problems with Snowdance Realty Company’s “follow the money” 

approach. The first is that the terms of the payment were defined in the written agreement: the 

money would be paid on behalf of Snowdance LLC in exchange for the release of the note and 

security interest. As a matter of contract interpretation, therefore, the use of extrinsic evidence to 

provide a different term of payment would be directly contrary to the parol-evidence rule.1

 See 

Tilley v. Green Mountain Power, 156 Vt. 91, 93 (1991) (a prior oral agreement cannot be used to 

contradict the terms of a later writing); Conway, 901 A.2d at 347 (extrinsic evidence cannot be 

used to show a contractual intention “wholly unexpressed in the writing”). 

 The second problem is that there is no evidence that the written agreement somehow 

“failed” between the time of contract formation and the time of payment. Mr. Plausteiner has 

tried to suggest that the contract “failed” because he wired the money two days late, but there is 

no evidence that CIT Group refused the payment on grounds of timeliness. No other evidence of 

a breach exists either. 

 

1

 The same reasoning applies to the attempts to introduce the UCC financing statement. It is being used as 

evidence of an oral agreement that would vary (indeed, nullify) the terms of the written contract. 
9 

 Snowdance Realty Company has also suggested that Mr. Plausteiner was acting as an 

agent for Snowdance Realty Company at the time he sent the wire rather than as an agent for 

Snowdance LLC. As noted above, the argument is contrary to the terms of payment specified in 

the written agreement. In addition, even if the suggestion were true as a matter of fact, it would 

represent a fairly clear breach of the agent’s duty of loyalty on the part of Mr. Plausteiner. See 

Restatement (Third) of Agency §§ 8.01–8.04 (explaining an agent’s basic duties of loyalty, 

including the “duty to refrain from competing with the principal and from taking action on behalf 

of or otherwise assisting the principal’s competitors”). One of the possible remedies in such a 

situation would be to void the alleged contract made between the breaching agent and the third 

party. See Restatement (Third) of Agency § 8.01 cmt. d(1) (explaining possible monetary and 

non-monetary remedies for breach). As such, the written contract would eventually prevail 

under this theory as well. 

 The final problem is that there is no documentary evidence to show that Snowdance 

Realty Company ever became a holder of the underlying debt. Snowdance Realty Company has 

said that it purchased the loan, but has not attempted to prove that the note was transferred in any 

of the ways that would make it a holder under the Uniform Commercial Code. In the absence of 

an underlying debt, any security interest is ineffective. 

 For these reasons, the court concludes that the integrated written agreement provided the 

terms of the transaction, and there is no ambiguity in the meaning of the written agreement: in 

exchange for the payment of $250,000, the note and the security interest were discharged and 

released. 

II 

 The next question is whether the description of the collateral in the PRIF Ascutney 

security agreement is sufficient to establish that MFW Associates now has a valid security 

interest in the high-speed quad chairlift. The applicable test is whether the description 

“reasonably identifies the collateral so that disputed as to the coverage of the security interest 

may be ironed out between the secured party and the debtor, and so that third parties, upon 

inquiry, can determine what collateral is claimed by the secured party.” 9A Hawkland UCC 

Series § 9-203:6 [Rev] (June 2012). Here, the security agreement plainly covers “ski tows and 

ski lifts.” 

 It is true that other provisions of the security agreement create a possibility that PRIF 

Ascutney did not intend to take a security interest in this particular ski lift right away—at least 

not so long as the CIT Group lien was in place and the chairlift was property that was leased by 

Snowdance LLC rather than owned. But even if those conditions mean what Snowdance Realty 

Company says they mean, the conditions expired by 2010, at the latest. After that point, the 

description of collateral in the security agreement was sufficient to cover the high-speed quad 

chairlift either as a “ski lift” or as after-acquired property. In re Southern Vermont Supply, Inc., 

58 B.R. 887, 891 (Bankr. D. Vt. 1986); 9A Hawkland UCC Series 9:204-1 [Rev] (June 2012). 

MFW Associates holds a valid security interest in the chairlift. 

III 
10 

 MFW Associates has also argued that Snowdance Realty Company lost its priority status 

as to any security interest it did have when it allowed its UCC financing statement to lapse in 

2010 for failure to file a continuation statement. The foregoing rulings make it unnecessary to 

address the argument, but, for the record, the court will note that a lapsed financing statement 

destroys the perfected status of a security interest even as between parties to the same litigation. 

See Thermal Supply, Inc. v. Big Sky Beef, 2008 MT 355, ¶¶ 15–17, 197 P.3d 1227 (explaining 

that Revised UCC § 9–515(c) “simply delete[d] the tolling rule” that had been created by Avant 

Petroleum, Inc. v. Banque Paribas, 853 F.2d 140, 144 (2d Cir. 1988)). 

IV 

 The court will also take the opportunity to address all of the other motions that are either 

pending or shown as pending on the court’s internal docket. 

A 

 As a matter of housekeeping, the court first addresses the motions that are shown as being 

under advisement on the court’s docket but for which, for all practical purposes, decisions have 

already been made. In entering these dispositions of the motions, the court does not mean to 

upset any settled expectations of the parties, so if the parties think that the court has made an 

error here they may bring it to the court’s attention by way of a motion to reconsider the specific 

ruling at issue. By “error,” the court means that the ruling stated herein is contrary to what the 

parties had understood the court’s ruling to be, not that the court made the wrong decision on the 

merits of the motion. 

 SRC’S Motion to File Amended Answer to the Supplemental Complaint (MPR #12), 

filed June 18, 2010, is granted. Snowdance Ski Company, Snowdance Hotel Company, and the 

Plausteiners’ Motion to File Amended Answer to the Supplemental Complaint (MPR #13), filed 

June 18, 2010, is granted. Plaintiff’s Motion for Service by Mail on Defendant Mael (MPR 

#15), filed June 30, 2010, is granted. Plaintiff’s Motion to Amend Complaint of Foreclosure 

(MPR #16), filed July 1, 2010, is granted. Defendant Snowdance LLC’s Motion for Relief From

Judgment (MPR #21), filed January 18, 2011, is moot. Defendant Snowdance LLC’s Motion to 

Consolidate Disqualification and Injunction Motions (MPR #26), filed May 9, 2011, is moot. 

Defendant Snowdance LLC’s Motion for Injunctive Relief (MPR #28), filed May 9, 2011, is 

moot. Defendant Snowdance LLC’s Motion for Extension of Time (MPR #29), filed May 26, 

2011, is moot. Plaintiff’s Motion to Amend Complaint of Foreclosure (MPR #32), filed June 8, 

2011, is granted. Defendant Snowdance Realty Company’s Supplemental Motion (MPR #44), 

filed March 2, 2012, is treated as a motion to file a surreply and is granted. 

B 

 Snowdance Realty Company has moved for partial summary judgment on the question of 

whether Snowdance LLC defaulted on its obligations under the former Textron note. See 

V.R.C.P. 56(g) (2012) (summary judgment may be entered on issue of liability while leaving 

damages undetermined). Snowdance Realty Company failed, however, to support its original 

motion with evidence showing that there were no disputed material facts for trial and that it was 

entitled to judgment as a matter of law. Price v. Leland, 149 Vt. 518, 521 (1988). 
11 

 Snowdance Realty Company attached supporting documentation to its reply brief that 

appears to be sufficient to show that there are no disputed material facts and that it is entitled to 

judgment as a matter of law on the issue of liability. In the interest of avoiding unnecessary 

effort, the parties are hereby ordered to treat the reply brief as if it were the original summaryjudgment motion. Any party opposed to the granting of the motion must file an opposition 

stating a substantive reason therefor within 30 days of this order. See V.R.C.P. 56(e) (2012) 

(court may make any appropriate order towards equitable determination of summary-judgment 

motion). 

C 

 Snowdance Realty Company has also moved for a partial distribution of the escrowed 

funds. It argues that it is entitled to at least the first $292,738 (plus per-diem interest) of the 

escrowed funds, and thus should be able to withdraw at least that amount, because the parties 

entered into a stipulation regarding the sale of the chairlift in which they agreed that the first 

funds from the escrow account would be paid to Snowdance Realty Company in satisfaction of 

the former Textron note. 

 As a procedural matter, the parties can expect that any request for partial distribution of 

the escrowed funds will be denied. Vermont Civil Procedure Rule 54(b) provides three 

prerequisites for the entry of a partial final judgment: (1) there must be multiple parties or 

multiple claims for relief, (2) at least one claim or the rights and liabilities of at least one party

must be finally decided, and (3) the court must find that there is no just cause for delay. Kelly v. 

Lord, 173 Vt. 21, 31 (2001). In this case, even aside from the fact that Snowdance Realty 

Company has not yet obtained a final judgment on its cross-claim, the court does not believe that 

“earlier access to disputed funds from an escrow account” is a persuasive reason in favor of the 

entry of a partial final judgment under Rule 54(b). See 10 Wright, Miller, Kane & Marcus, 

Federal Practice and Procedure: Civil 3d § 2656 (“Rule 54(b) may be invoked only in a relatively 

select group of cases and applied to an even more limited category of decisions.”). For this 

reason alone, the motion for partial distribution is denied. 

 MFW Associates has also opposed the motion on substantive grounds. MFW Associates 

argues that the stipulation was prepared as consideration for Snowdance Realty Company’s 

agreement to withdraw its objections to the proposed sale of the lift to Burke Mountain for $1.5 

million dollars. Obviously, the proposed Burke Mountain sale fell through, and the lift was 

eventually sold to Peak Resorts for $1.35 million dollars. MFW Associates now argues that (1) 

the stipulation applied only to the proposed Burke Mountain sale, (2) Snowdance Realty 

Company breached the stipulation by opposing the Peak Resorts sale and thus cannot now seek 

to enforce the terms of the original stipulation, and (3) the stipulation became ineffective when 

the court imposed its own terms on the escrow requirements for the sale of the chairlift to Peak 

Resorts. After reviewing the stipulation, the court has concluded that interpretation of the 

agreement is best undertaken as a factual matter at a merits hearing. Hall v. State, 2012 VT 43, 

¶ 21. 

D 

 By the court’s count, there are three remaining substantive issues to be decided: (1) 

whether Snowdance Realty Company is entitled to a foreclosure judgment on the former Textron 
12 

note; (2) whether the pledge agreements given by the three Snowdance companies are recourse 

or non-recourse (the issue identified by the first summary-judgment decision); and (3) whether 

Snowdance Realty Company is entitled under the February 2011 stipulation to be paid first from 

the sale proceeds in satisfaction of the amounts due under the former Textron note. Beyond that, 

the only remaining issues in the case are the accounting of the amounts due and attorney fees. 

Unless the parties disagree, the court is prepared to address all remaining issues at an omnibus 

merits and accounting hearing. 

* * * * 

 For the foregoing reasons, the court concludes that MFW Associates has a secured 

interest in the proceeds from the sale of the high-speed quad chairlift, and that the former CIT 

Group note and security interest were discharged and released by virtue of the 2008 transaction. 

Snowdance Realty Company may, however, subject to further rulings of the court, have a claim 

on at least some of the sale proceeds by virtue of its possession of the Textron note. 

ORDER

 

 (1) SRC’S Motion to File Amended Answer to the Supplemental Complaint (MPR #12), 

filed June 18, 2010, is granted. 

 (2) Snowdance Ski Company, Snowdance Hotel Company, and the Plausteiners’ Motion 

to File Amended Answer to the Supplemental Complaint (MPR #13), filed June 18, 2010, is 

granted. 

 (3) Plaintiff’s Motion for Service by Mail on Defendant Mael (MPR #15), filed June 30, 

2010, is granted. 

 (4) Plaintiff’s Motion to Amend Complaint of Foreclosure (MPR #16), filed July 1, 2010, 

is granted. 

 (5) Defendant Snowdance LLC’s Motion for Relief From Judgment (MPR #21), filed 

January 18, 2011, is moot. 

 (6) Defendant Snowdance Realty Company’s Motion to Determine Priority Status (MPR 

#25), filed May 2, 2011, is denied. 

 (7) Defendant Snowdance LLC’s Motion to Consolidate Disqualification and Injunction 

Motions (MPR #26), filed May 9, 2011, is moot. 

 (8) Defendant Snowdance LLC’s Motion for Injunctive Relief (MPR #28), filed May 9, 

2011, is moot. 
13 

 (9) Defendant Snowdance LLC’s Motion for Extension of Time (MPR #29), filed May 

26, 2011, is moot. 

 (10) Plaintiff’s Motion for Partial Summary Judgment as to Priority Status of Chairlift 

Lien (MPR #31), filed June 6, 2011, is granted

 (11) Plaintiff’s Motion to Amend Complaint of Foreclosure (MPR #32), filed June 8, 

2011, is granted. 

 (12) Defendant Snowdance Realty Company’s Supplemental Motion (MPR #44), filed 

March 2, 2012, is treated as a motion to file a surreply and is granted. 

 (13) Any party opposed to the granting of Snowdance Realty Company’s Motion for 

Summary Judgment (MPR #45), filed March 22, 2012 and as supplemented through May 11, 

2012, shall file an opposition within 30 days of this order 

 (14) Defendant Snowdance Realty Company’s Motion for Partial Distribution (MPR 

#49), filed May 21, 2012 (MPR #49), is denied. 

 (15) The clerk shall schedule an omnibus merits and accounting hearing for the 

remaining issues in the case. 

 Dated at Hartford, Vermont this ____ day of __________, 2012. 

 ________________________________ 

 William D. Cohen 

 Superior Court Judge