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Interestingly, after arguing that these matters necessarily must proceed to trial, <br />the Applicants now change their position and argue that there were no disputed facts <br />and that there should never have been a trial. If there truly were no disputed facts, the <br />applicants should have filed a motion for summary judgment. The Applicants, <br />however, never timely filed a motion for summary judgment seeking a ruling based <br />on those facts the Applicants now characterize as undisputed. The Applicants' failure <br />to file a motion for summary judgment is itself sufficient to deny the Applicants' <br />motion for attorney fees. See Ruffing v. Lincicome, 737 P.2d 440, 441 -42 (trial court <br />appropriately denied award of attorney fees for claim where moving party could have, <br />but failed to file motion for summary judgment.) <br />3. The Applicants misrepresent the parties' evidentiary discussions. <br />Applicants next contend that the State proceeded vexatiously by challenging the <br />authenticity of the Applicants' exhibits. The State's challenges, however, were made only <br />in response to the Applicants objecting generally to the "foundation" of the State's <br />exhibits, without informing the State specifically as to what type of further "foundation" <br />the Applicants would require. Such a "foundation" objection legally and logically would <br />encompass a claim to authenticity. <br />After receiving assurance from the Applicants that the Applicants' "foundation" <br />objections would not encompass objections as to authenticity, the State immediately <br />withdrew its own authenticity objections, shortly after the objections were made. The <br />Applicants did not include with their motion a copy of the State's letter withdrawing the <br />State's authenticity objections and confirming the nature of the Applicants' "foundation" <br />objections. Accordingly, a copy is included with this response. See April 23, 2002 letter <br />from John Cyran to Steve Bushong, attached hereto as Exhibit B. <br />4. The Applicants misrepresent the parties' discussions concerning a <br />potential settlement and possible continuance. <br />Lastly, the Applicants argue that the State spurned settlement offers and refused <br />the Applicants' offer to continue the trial in these matters. This argument is inconsistent <br />with the parties' actual pre -trial negotiations. <br />2 The State also appropriately filed motions in limine for the purpose of expediting trial. Most <br />significantly, the State filed a Motion for Treatment of Out of Court Statements as Non - Hearsay. <br />The State filed this motion when the Applicants refused to admit to the admissibility of certain <br />statements made by Town of Vail officials regarding the Vail whitewater park. The State <br />believed these statements to be clearly admissible, because the Town of Vail was the clear <br />beneficiary of the park, and because counsel for Applicants had treated the Town as a party <br />throughout these proceedings. At trial, Town officials admitted to the content of the statements <br />under cross - examination. If the Applicants had agreed to the admissibility of these clearly <br />admissible statements, the State's motion would have been unnecessary. <br />10 <br />