They have an outstanding team that truly care for their clientsI have been awarded a fair six figure settlement. Meyer was also a Certified Public Accountant and a Certified Financial Planner. Accordingly, the Court now turns to the Concert Defendants' remaining arguments on these Counts: first, we consider whether there was a duty to disclose, giving rise to a fraudulent nondisclosure claim under 551, and second, we consider whether there are sufficient facts to show that the Concert Defendants actively concealed their relationship with Ridgewood from Defendants and that their relationship was material to the transaction, giving rise to a fraudulent concealment claim under 550. 100-5, Ex. the law ordinarily infers that damage ensued, and, in the absence of actual damages, the law vindicates that right by awarding nominal damages.' A copy of the meeting notes is available by clicking on the document to the right. No. 6:18-CV-01685 | 2018-10-09, U.S. District Courts | Other | A (executed copy of a September 29, 2016 confidentiality agreement between Ridgewood and PCC).) This is a fact basic to the transaction.) with id., illustration 4 (A sells to B a dwelling house, knowing that B is acting in the mistaken belief that a highway is planned that will pass near the land and enhance its value. No. . Plotnick testified that he spoke with Meyer that same day and that Meyer told him PCC was under contract to sell the Property. No. . Concert Golf Partners bought Blue Hill CC in 2015, after the club was struggling with about $5 million Nanula explained that Meyer wanted to explore how we could give the club 100% of all our real estate proceeds in 2-4 years when a deal happens. (Id.) 9 to Ex. 100-29, Ex. Holdings, LLC, Civil Action No. The new amount is a fraction of the refund resigned members are entitled to at the time of resignation. & PowerReit, No. Id. No. A: . However, it may take years before a resigned member actually gets their check. ), The Phase II Capital Projects were subject to change arising from consultation with the new Club Advisory Board; New club member surveys; input and recommendations by [Concert Philmont's] operating consultants and experts; and Concert Philmont's refinement of the scope of such items after closing, at its discretion. No. The Tenth Circuit affirmed summary judgment for RLH on the 551 claim, holding that RLH was not a party to a business transaction under 551. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. Id. No. (See Doc. Id. Second, the proposed Seventh Amendment provided that NPT would pay an additional $45,000 for each lot, if any, it was permitted to develop over 160 lots. No. 149-1 at 169. W at 68:1-2 & Doc. There, the court held that the defendant, Gnagey, actively concealed eight abandoned tanks from the plaintiff, the Fund, which provided coverage to storage tank owners. Judge removes the case from the June 2022 trial docket. PGCC and Concert file their reply objecting to the request for rehearing by The Class. 100-5, Ex. 100-28, Ex. Section 550 applies to fraudulent concealment claims (i.e., active concealment), while Section 551 applies to fraudulent nondisclosure claims (i.e., mere silence). (See Doc. NPT conflates the Court's rulings on whether the fraud claim arose under the PSA (the context in which the Court discussed the gist of the action doctrine) and whether NPT can state a fraud claim when alleging fraud in connection with future promises. Nanula concluded, If we can pull this off, we could get back some of our initial risk capital from future real estate proceeds - maybe zero, maybe never - and this prospect allows us to be interested in PCC. (Id., Ex. The Club at Renaissance, Concert Golfs most recent acquisition, is located within an exclusive South Florida community. NPT also argues the Concert Defendants had a duty to disclose under 551(2)(b). No. No. As noted above, a defendant can be held liable under 551 only if there is a duty to disclose. Although RLH made an initial offer to purchase Rumsey's land and later placed an unsuccessful stalking horse bid on the property, RLH did not contract to buy anything from Rumsey. A: . Ultimately, more than a mere scintilla of evidence is needed to survive summary judgment, and based on the present record, no reasonable juror could find by clear and convincing evidence that the Concert Defendants' relationship with Ridgewood constituted material information. (Doc. No. Because we dismissed the fraud claims brought against all Defendants, supra Sections IV.A and IV.B, there is no fraud for which either the Concert Defendants or the Ridgewood Defendants can have aided and abetted. (Doc. 2 to Ex. WebConcert Golf Partners is a boutique owner-operator of private clubs based in Newport Beach, Calif. And on November 30, in response to receiving Meyer's email with the contact information of two firms (NPT and NVR), Nanula told Meyer that he would find the right people to get this land transaction done (Doc. 116-13, Ex. Fraudulent concealment is characterized by deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. Gnagey Gas & Oil Co., 82 A.3d at 501 (quoting Colton, 231 F.3d at 898-99); see also Id. (Doc. However, in 2021, Meyer testified that in or around September 2016, Ridgewood made an informal offer for $5 million for the nine-hole Property. The illustrations to the comment make clear that a fact can be important and still not go to the essence of the transaction-and therefore would not constitute a basic fact giving rise to a duty to disclose. ), On November 21, Plotnick emailed Nanula his thoughts on some deal points as well as a few tweaks to [the] deal structure. (Doc. No. Instead, driven by its distressed financial position, it chose to take the only deal on the table other than NPT's. No. (Id. at 150:5-11. The only duty that defendants allegedly breached involved a breach of a duty enshrined in the Purchase Agreement-namely, the non-compete clause.); see also Shoemaker v. HedgeCoVest LLC, Civ. 14 to Ex. Court issues its ruling saying that The Class did not present enough evidence to prove that PGCC breached its contract with the members of The Class. Updated: Feb 28, 2023 / 05:11 PM EST. Full title:NORTH PENN TOWNS, LP, directly and as assignee of Philmont Country Club, Court:United States District Court, E.D. 149-1 at 60.) That is not what this Court held. . A.) Although the Court does not rely on this in so holding, the Court notes that as of January 20, 2017before the PSA was executed-the Township was aware that Ridgewood and CGP were working together. So, the country club chose profit over people. 149-1 at 136-37. (See Doc. 100-5, Ex. (emphasis added).) Co., 2018 WL 1517022, at *4 n.2 (Put another away, Coutu cannot reasonably expect to lob facts into a business transaction, such as Bensusan being able to act as an appraiser under an insurance policy requiring an impartial appraiser, and then walk away unscathed when those facts cause mayhem to the business transaction. ), Ridgewood. Concert Golf offers a personalized and curated approach to partnership and operates 27 private golf and country clubs nationally, including former developer-owned clubs and longtime member-owned clubs. Stallone testified that during a phone call with Nanula, he and Tulio believed that Nanula was fishing and ended the conversation. at 51; see also Doc. 100-35, Ex. Last, it provided that at closing, PCC would grant NPT a credit against the purchase price in the amount of $375,000; however, if NPT's costs to construct and install the clubhouse were less than $1.6 million, the purchase price credit would be decreased by one-third. You will see. No. 1 at 177-85.) (See Doc. . Financial terms of the transaction were not disclosed. (Doc. No. Next, the Concert Defendants argue that summary judgment is appropriate on NPT's 551 fraudulent nondisclosure claim because they did not owe PCC a duty to speak. Trade & Fin. (See July 19, 2022 Hr'g Tr. In fact, during oral argument, NPT could not identify a case providing that two companies cannot make plans to acquire a company together, unbeknownst to the seller. 2020-03-13, U.S. District Courts | Other | . . . In sum, because the representations concerning capital improvements that Plaintiff alleges fraudulently induced PCC to enter into the PSA were ultimately incorporated into the PSA, NPT's fraud claim sounds in contract, not tort, and is barred by the gist of the action doctrine. . at 79-80; id. NPT has not cited a single case suggesting that an individual or entity can be held to have a duty to disclose and be responsible for clarifying a partial or ambiguous statement that it did not make. 100-5, Ex. at 70-71. Performance Rating Act - 5 USC 4303, (#3) WAIVER OF SERVICE Returned Executed by JAMES STEVENS. 117 at 13-16.) 35 to Ex. No. A (We have to assume no real estate transaction might ever be possible, due to the environmental remediation vagaries and cost; the extensive infrastructure costs for the Philmont Ave. intersection project; and the Town approval uncertainties.).) 100-5, Ex. A: Well, you know, because we - we wanted to be out of the club business so, you know, if we received one offer where we were going to have an operator versus another offer that was just for real estate deal there may have been some concerns about, you know, continuing to having [sic] to operate the club.). On September 19, Nanula requested any and all details on the pending NVR deal for the South Course acreage. (Id.) a deal that Concert was going to cut for Ridgewood, Meyer testified that in [his] capacity as president, if the financial arrangement of the deal was going to be as stipulated, [he didn't] know that anything else would have changed our mind in that regard. (Doc. 124-1 at 7. X, 45:23-47:2, 65:20-66:21; Ex. In analyzing the applicability of the gist of the action doctrine and determining whether a cause of action sounds in contract or tort, courts should consider whether the claim arises from breaches of duties imposed by law as a matter of social policy or from breaches of duties imposed by contracts between particular individuals. A (Eighth Amendment to the AOS, extending the due diligence period from September 16, 2016 to September 26, 2016). That same day, Stallone also sent Nanula NPT's sketch plan for the Property, which had been prepared by NPT's engineer. 8:19-CV-02344 | 2019-09-20, U.S. District Courts | Other | No. The evidence showed that Gnagey had discarded the abandoned tanks and the soil, and backfilled the excavated area without informing the Fund that it discovered the abandoned tanks; changed its invoicing procedure to the Fund after discovering the abandoned tanks; and issued three invoices to the Fund accompanied by photographs, narratives, and a chronology of daily work activities, all of which failed to document or disclose the abandoned tanks. Id. Pa. July 31, 2015) ([W]here a party is accused of purposefully concealing information material to a transaction, no confidential or fiduciary relationship between the parties need exist for liability to be imposed. Under Concert Golf, the club will be debt free and run by a professional golf club company, the Post reported. ), The agreed-upon Initial Capital Projects consisted of: renovating the men's and women's locker rooms so that they met a modern country club standard; improving the North Course bunker, cart path, greens, and drainage and removing trees; renovating the pool and pool area; and upgrading the HVAC infrastructure. . However, the Court dismissed the only cause of action asserted against those entities-civil conspiracy, so they are no longer Defendants in this action. There is scant case law on what constitutes a party to a transaction under 550 and a business transaction between parties under 551. (Doc. No. (Doc. 2022) (holding that the evidence produced by [the plaintiff] would allow a reasonable jury the option of concluding by clear and convincing evidence that Drexel misrepresented or concealed its own projections for student enrollment). (Id. Nos. 100-8, Ex. (Doc. (See id. (Id.) Under the proposed Seventh Amendment, the minimum purchase price would be revised to $12,049,382.40-i.e., $75,308.64 multiplied by 160. Seven to fourteen times Ridgewood's initial investment of $500,000 is $3.5 million to $7 million. CONCERT PHILMONT, LLC doing business as PHILMONT COUNTRY CLUB, 3331 Street Road, Two Greenwood Square, Suite 128, 3331 Street Road, Two Greenwood Square, S/128, Docket(#3) WAIVER OF SERVICE Returned Executed by JAMES STEVENS. No. (July 19, 2022 Hr'g Tr. 100-5, Ex. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, O.) the club still may have moved forward given the situation it was in. (Id. 20 to Ex. ), Meanwhile, on January 23, CGP incorporated Concert Philmont and Concert Philmont Properties as single purpose entities to be the purchasers. All of these ball drops' as Peter Nanula would refer to them, along with the disregard to the contract (60 Acres of Land vs 80, Modern Clubhouse Standards, Outings during off-peak times, and $5M of improvements [I'd be shocked if half of that was spent with the patchwork that has been done to date]) have brought me to my design [to resign. Those cases arose in different contexts. mctlawis a federally registered trademark. A: Possibly. (emphases added)).) No. In so holding, the Court emphasizes that NPT asserts this claim-and all other claims-as assignee. S.) Stallone stated, Yes, but that was with all the environmental and zoning contingencies that you said the club was no longer interested in accepting. (Id.) D at 27:21-29:16.) Rumsey identifies no other interaction with RLH that would constitute a business transaction. Id. In sum, the Court finds that the Ridgewood Defendants were not parties to a business transaction under 551 or parties to a transaction under 550, and, therefore, we grant summary judgment in their favor on Counts II and III. Ruling favors golf club in lawsuit filed by former members (Id. 116-2 at 202 (In discussing the component of the Defendants' agreement that yields a $7 million allocation for the Property, Mr. Nanula wrote to his associates: Next $7m to CGP for land. Ct. 2002)). 11.) (See Doc. A [Meyer]: Uhm, I don't recall, but it was a significant time frame after we completed the sale.).) 100, 101.) 149-1 at 37.) (Doc. 100-38, Exhibit GG.) . See id. ' Matsushita, 475 U.S. at 587 (citation omitted). No. As noted above, the Restatement does not provide that a duty to disclose arises where one party is the only source of information to the other party. Bucci also cites to Duquesne Light Co. v. Westinghouse Elec. . Neither of these situations is present here. 53 at 26-30; see also id. (Doc. W at 111:19-112:7. Id. The Tenth Circuit's logic in In re Rumsey Land Company, LLC applies with equal force as to Ridgewood. Pa. Feb. 12, 2018) (Permitting a fraudulent inducement claim in this case would essentially negate the entire [] gist of the action doctrine because a Plaintiff would have only to allege that Defendants never intended to abide by a provision in their contract in order to escape dismissal. Once the moving party has met its burden, the nonmoving party must counter with specific facts showing that there is a genuine issue for trial. Matsushita Elec. (Doc. No. 5 to Ex. ), After receiving Ridgewood's proposal, Nanula forwarded the email to Nick Cicero, a partner at Freestone Capital Management. (ii) to honor its commitment to retain 9 holes of the South Course (or to at least offer an acceptable alternative in light of its refusal to comply with the terms of our Agreement of Sale regarding the South Course), (iii) to provide evidence of the capital it has spent to date, (iv) to provide evidence of its retention of the capital reserves generated as a percentage of Member revenues as required under our Agreement of Sale, and (v) to create and implement a business plan that honors its obligations under our Agreement of Sale to return Philmont to an elite' country club status. (emphasis added)). ), Restatement (Second) of Torts 551, cmt. It appears that this was the basis for the Bucci court's test-not the Restatement directly. 100-26, Ex. (If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract . at 28. 53 at 53-57; see id. 149-1 at 48; see also Doc. Under the agreement, PCC (the Assignor) agreed to assign NPT (the Assignee), NPT initiated this action against Defendants on October 1, 2019. No. Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. The hearing and the trial will move ahead as scheduled. Co., 920 F.Supp. (Id. (See Doc. (Id.) (See id. No. (Id.) In its response, NPT entirely fails to address the Concert Defendants' argument that CGP and Nanula were not parties to a transaction. (stating that under NPT/Metropolitan's proposal, NPT/Metropolitan would only purchase 9 holes and PCC would retain ownership and control of EVERYTHING else, whereas CGP's proposal involved total sale of all land and assets of the club pursuant to which PCC would abdicate[] club control to CGP).) Equal Employment Opportunity Act (EEOA) - 42 USC 2000e A at 190.) Finally, one place to get all the court documents we need. (Doc. 100-28, Ex. No. ), That same day, Meyer sent a letter to PCC's membership, informing them of the terms of CGP's proposal. First, in the Court's August 18, 2021 Memorandum, the Court sua sponte considered the gist of the action doctrine in determining whether fraud claims arose under the PSA. Anderson, 477 U.S. at 252. A. See Wen, 117 F.Supp.3d at 683. at 2 (stating that Concert Philmont LLC would establish and operate the Club); see also Doc. The next day, September 20, Moran provided Nanula with a preliminary analysis of Philmont Club's finances, and Nanula replied, E. Ridgewood's Interest in a Potential Transaction, In September 2016, Plotnick, then-Vice President of Ridgewood, a developer, attended an industry conference in Texas, where he met PCC's golf management consultant, John Brown of Brown Golf Management. See Leprino Foods Co. v. DCI, Inc., 727 Fed.Appx. ), On September 16, NVR told Glenn Meyer, then-President of PCC, and PCC's counsel that NPT indicated to NVR its desire to exit the transaction and NVR will be stepping back into the shoes of the Purchaser. (Doc. ), On November 9, Nanula emailed Meyer and noted that in a meeting the following week, they should focus on [t]he capital project priorities that you really want to see happen at PCC and other elements of the Proposal. (Doc. Nanula forwarded the materials from Silverman to CGP's consultant, Thomas Moran, to prepare a pro forma analysis. 18 to Ex. And PCC did not push back or drive a harder bargain to get CGP to expend more money on capital improvements following the sale of the developed Property-things that could have increased its own profit as well. NPT primarily sought these extensions to sort out the unit yield issue but also needed to resolve certain environmental issues prior to any development of the Property. . 101-1 at 6 n.2, 17.) (Doc. 149-1 at 15; Doc. No. at 45:23-47:2. T.) NPT's revised proposal included a chart comparing NPT/Metropolitan's proposals side-by-side to CGP's proposal. A: Again, I - I don't - that I can't answer. The initial burden of demonstrating that there are no genuine issues of material fact falls on the moving party. He already knew about you and had been on your website. 173)-notwithstanding the fact that he had told Ridgewood that he was ready to paper [their] deal the week prior (Doc. A.) As to the Ridgewood Defendants, NPT summarily asserts that they were parties to a transaction because they participated in the transaction by colluding with the Concert Defendants. (Doc. ), Fields forwarded Nanula's email to PCC's then-Treasurer, Sam Silverman. No. No. A: I would say not necessarily. at 35:19-36:9 (Q: [I]f you had known that Ridgewood and Concert, Concert Golf had cut a deal to work together, would it have changed your perspective on the offer that Concert Golf made? (Doc. (KARPF, ARI) (Entered: 01/14/2019), Docket(#2) NOTICE of Appearance by DAVID KORSEN on behalf of JAMES STEVENS (KORSEN, DAVID) (Entered: 01/07/2019), DocketDEMAND for Trial by Jury by JAMES STEVENS. No. Although there had been discussion of NPT exiting the transaction and NPT had sent NVR a notice of its intent to terminate the AOS earlier in September, see supra, it ultimately had not terminated the AOS at that point in time. Nanula also stated that he would work on a preliminary proposal to share [that] week. (Id.) Q: If you had known that Concert and Ridgewood were anticipating millions in extra profit from the deal, would you have thought differently about the deal that Concert was offering to Philmont Country Club? 116-19, Ex. No. 100-5, Ex. Concert Golf Partners is a boutique operator of private golf and country clubs headquartered in Lake Mary, FL. 116-14, Ex. ), During a mid-January 2017 email exchange with counsel about a draft of the PSA, Nanula wrote that the current Exhibit I cover[ed] the Big 4 of these projects, which included utility infrastructure; pool/porch/patio; locker rooms; and golf course. No. . Disagreements over what inferences may be drawn from the facts, even undisputed ones, preclude summary judgment. Pcc 's then-Treasurer, Sam Silverman forwarded the materials from Silverman to 's. And a business transaction between parties under 551 only if there is a duty to disclose 551... It was in is a duty enshrined in the Purchase Agreement-namely, the will! And run by a professional golf club company, LLC applies with force... 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