Judge issues judgments in favor of Vail in dispute with former Town Council member Greg Moffet, advertising firm | VailDaily.com

Judge issues judgments in favor of Vail in dispute with former Town Council member Greg Moffet, advertising firm

Existing claims are set to be determined in a trial starting Monday, Feb. 27

On Friday, Feb. 17, Eagle County District Court Judge Paul Dunkelman issued several judgments in the town of Vail’s case against former Council member Greg Moffet and his firm, Tiga Advertising.

The judge ruled that Tiga Advertising was in breach of contract, siding with the town’s initial 2021 complaint, as well as siding with the town in a counterclaim filed by Tiga and Moffet, which alleged the town violated Colorado’s open meeting laws.

The matter will still face a jury trial starting on Monday, Feb. 27, to resolve the remaining claims from the town. After the judgments and orders issued on Friday, these claims included a determination of the total amount of money still owed to the town (including the town’s attorney fees) as well as the amount of liability that rests with Moffet versus Tiga, according to a town spokesperson.

However, after the judgments were issued, Tiga Advertising filed for Chapter 11 bankruptcy on Friday, Feb. 17. With this filing, there is automatically a stay placed on all pending claims and litigation filed against the company.

Thus, the town cannot currently pursue further action against Tiga, but it will still be pursuing action against Moffet, the town’s spokesperson said.

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There will be a status conference held between all parties on Thursday, Feb. 23, to iron out some of the details and determine what actions can and will be pursued ahead of the scheduled trial next week.

History of the case

This case started two years ago when the town of Vail filed a complaint against Moffet, a former council member, and his firm on Feb. 12, 2021.

The complaint alleged that the town had not received payment from Tiga Advertising, claiming that Tiga “failed to remit required payments to the town, failed to hold the town’s property in trust as was its fiduciary duty and failed to make required financial disclosures in accordance with the agreement,” according to Friday’s partial judgment.

The contract in question was a five-year agreement between the town and Tiga, which was signed in May 2014 and granted Tiga the exclusive right to solicit and sell advertising for the inside of Vail’s buses as well as in its bus stop structures and transportation center.

The contract, according to the information in the judgment, held that Tiga would bear all costs associated with the advertising alongside an annual fee of $72,000 or 55% of Tiga’s gross revenues, whichever was greater.

This agreement expired in May 2019, and while the town did not extend it for another five years, Tiga did continue to provide the advertising services through July 2020 with “the town’s implied permission,” according to the partial judgment.

In 2020, the town selected Miles Partnership as its new contractor for the service.

The breach of contract from the town alleged that Tiga failed to pay the amounts due for 2019 and the first quarter of 2020. In its complaint, the town alleged that Tiga failed to remit payments exceeding $125,000, an allegation denied by Tiga in its response and counterclaim.

After the town filed its complaint in February 2021, Moffet and Tiga filed counterclaims against the town as well as against all seven Council members who were sitting on the council at the time. The first counterclaim — which alleged a breach of contract against the town — was dismissed at the end of 2021. The second counterclaim was filed against the seven Town Council members, alleging they violated Colorado’s open meeting laws.

The latter counterclaim stated that the town failed to publicly announce matters the council members intended to discuss as well as made decisions on behalf of the town during two separate executive sessions.

Under Colorado’s open meeting laws, local public bodies must provide public notice of executive sessions, including identification of the particular matters to be discussed. Additionally, executive sessions are to be reserved for negotiations, legal matters and personnel issues. Under the same laws, most types of formal action are required to take place in open meetings.

This response and counterclaims motion also states that the town’s action was “political retaliation,” citing a “political divide” between the Vail Council members and Moffet.

“The actions and decisions on how to treat Defendants were made in retaliation for Moffet’s stances surrounding the political divide on City Council, resulting in Defendants being singled out and treated differently than similarly-situated individuals and entities,” read the counterclaims and response filed on May 17, 2021.  

The judgments

The first partial summary judgment issued by Dunkelman on Feb. 17 ruled in favor of the town, stating that the defendants (Tiga and Moffet) “are bound by the agreements terms, which they breached by failing to remit payments due and owing.”

It does hold that Tiga effectively remitted $8,787.50 to the town in December 2020, “reducing the principal amount owing of $88,000.00 to $79,212.50.”

In the partial judgment, Dunkelman ordered that the town’s “first claim for relief” against Tiga was “in the amount of $88,000.”

In another summary judgment issued on Friday, Feb. 17, Judge Dunkelman asserts that the town “complied with their statutory obligations” under Colorado’s open meeting laws by announcing the executive sessions in question. This judgment dismissed the claims against the council and council members.  

Additionally, it held that Town Council’s decision to pursue litigation in executive session did not invoke the open meeting laws “because it is not an action related to the policy making function of the Town Council,” read the summary judgment. 

Following prior case law, the judgment states that in order to be subject to Colorado’s open meeting laws, a meeting must be part of the policy-making process, adding that this includes items undertaking a rule, regulation, ordinance or formal action.

Going to trial

There are still a few issues to be determined by the court in the case. In a final order issued on Friday, Feb. 17, Dunkelman lists that there are two remaining claims from the town against Tiga and one remaining claim against Moffet. This includes claims for conversion and breach of fiduciary duty against Tiga, and a claim of aiding and abetting breach of fiduciary duty against Moffet.

On the latter, the order states: “It is not clear to the court that a claim for aiding and abetting the breach of fiduciary duty is a legally cognizable claim.”

However, with the bankruptcy filing, only the claims against Moffet can be determined at this time.

According to a town spokesperson, this includes seeking payment for the town’s attorney fees, which were not included in the judge’s order. The town’s legal fees in this lawsuit total $125,135.86, according to its finance department.

The jury trial is scheduled for Monday, Feb. 27, through Wednesday, March 1, and will seek to determine the remaining legal issues in the case. The status conference set between all parties on Thursday, Feb. 23, will establish exactly which pending matters still need to be determined.

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