(Doc. v. PNC Fin. No. However,board members changed the redemption formula in the bylaws against attorney advice. 1.) 14 to Ex. See LEM 2Q, LLC, 144 A.3d at 182 (Here, Guaranty was a party only to the escrow and thus had no duties toward LEM in the mezzanine loan transaction. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. Corp. USA, Inc. v. Am. (Doc. (See Doc. 100-5, Ex. (See Doc. No. No. Pa. 2009) ([S]everal district courts evaluating the gist of the action doctrine have held that fraudulent inducement claims are still barred when the fraudulent statements made during negotiations becomes the basis for a subsequently executed contractual duty.). 1996) (citation omitted). No. No. 100-35, Ex. Public Records Policy. ), A few hours later, Nanula sent a follow up email, stating that CGP continue[d] to be intrigued here, with the caveat that we still have to get comfortable with the Club in the event that no real estate proceeds are ever realized (enviro, Town, intersection, buyers). (Id. Cancellation and Refund Policy, Privacy Policy, and 14 to Ex. 100-29, Ex. In other words, CGP would not be purchasing Philmont Club directly. Corp., 66 F.3d 604 (3d Cir. NORTH PENN TOWNS, LP, directly and as assignee of Philmont Country Club, Plaintiff, v. CONCERT GOLF PARTNERS, LLC, et al., Defendants. 100-5, Ex. No. But it did not. Id. at 97. Operating Status Active. 9; Doc. NPT informed NVR that unless they were able to come to some understanding concerning the additional costs that are involved as a result of this material change, NPT would be forced to provide notice of its intention to terminate the LPA. 7 at 426:12-15.) 100-26, Ex. This purchase matches the dollar amount that is subject to contingencies in the proposal on the table from Center [sic] Golf. Under either New Jersey or Pennsylvania law, actual damages need not be established to survive summary judgment on a contract claim. ; see also Doc. 149-1 at 20.) 149-1 at 136-37. No. (Id. 100-8, Ex. Ct. 2005). Ins. at 83 (On December 12, 2016, Nanula met with members of Philmont at the Club and made a power point presentation relating to CGP's proposal to acquire the Club.).) The Club at Renaissance, Concert Golfs most recent acquisition, is located within an exclusive South Florida community. 100-22, Ex. WKAR relies on individual The Court reasoned: Here, RLH was not a party to a business transaction with Rumsey. 5 to Ex. Anderson, 477 U.S. at 252. 1. No. No. W at 68:1-2 & Doc. (Id. The Court dismissed the fraud in the omission and fraudulent concealment claims, determining that Defendants did not owe PCC, which was a sophisticated entity engaged in an arms-length business transaction, a duty to speak. Meyer's testimony underscores that CGP taking over as golf operator and CGP's monetary promises (i.e., paying off PCC's debt and spending $4 million in capital expenditures initially, followed by another $5 million upon the sale of the Property) were the bases of the transaction: It is also noteworthy that, before the PSA was executed, Meyer provided Nanula with the contact information for NVR and NPT/Metropolitan. K.), NPT cites an unsigned Third Amendment to the LPA, which was circulated on September 26, to support its assertion that NPT and NVR eventually did come to an understanding. (See Doc. . (See, e.g., Doc. ), In May 2015, PCC agreed to sell the Property to NVR, Inc., a homebuilder. (Id.) ), Age Discrimination in Employment Act (ADEA) - 29 USC 621-634 116 at 28-29. Throughout its response, Plaintiff emphasizes the distinction between fraudulent concealment under 550 and fraudulent nondisclosure under 551 and the fact that a duty to disclose is only required under 551-not 550. But that information related to the amount of money CGP intended to spend on capital expenditures, not Ridgewood and CGP's relationship. 53 at 26-29 (discussing gist of the action doctrine) with id. (Id.) I don't know the answer to that question.).) (See, e.g., Doc. North Penn Towns LP v. Concert Golf Partners LLC, et al, PIERRE, BELLANDE V CONCERT INDIAN SPRING LLC, NORTH PENN TOWNS, LP v. CONCERT GOLF PARTNERS, LLC et al, Golladay v. Ryman Construction, Inc. et al, Acosta v. Texas Department of Criminal Justice. ClubCorp and Morningstar are both golf course operators. (Id. at 34; accord Doc. at 683; see also Plexicoat Am., LLC, 9 F.Supp.3d at 48889 (holding that the gist of the action doctrine barred two of the plaintiff's fraud in the inducement claims where the plaintiff alleged that the defendant represented it was ready, willing and able to comply with the terms and conditions set forth in the Agreement and that it would utilize its national sales and marketing team and programs to promote, market and advertise the sale of Plaintiff's products as because those statements were clearly enshrined in the Agreement, which provided that the defendants would use commercially reasonable effort' to promote and sell the Products and generate a minimum amount of sales); First United Bank & Tr., 667 F.Supp.2d at 451 (concluding that the gist of the action doctrine barred the fraudulent inducement claims where [i]t [was] clear that the[] representations and duties detailed in the Master Agreement concern[ed] the same facts and circumstances that [the plaintiff] now alleges were misrepresented in order to induce it to enter the Master Agreement and emphasizing that the subject representations made during negotiations foreshadowed contractual duties and subsequently ripened into contractual provisions such that the duties allegedly breached were grounded in the contract itself); CRS Auto Parts, Inc., 645 F.Supp.2d at 380 (finding that the gist of the action doctrine barred the plaintiff's fraud claim in part because [a]ny contractual statements by Turley concerned coverage duties that were later outlined in the written insurance policy). 37 to Ex. ), CGP. A: Again, I - I don't - that I can't answer. ), Nonetheless, according to Meyer, even if another offer were available, PCC may have still moved forward given its financial predicament and its desire to no longer operate the Club. Co., 645 F.Supp.2d 354, 377-78 (E.D. Because a party to a transaction is broader than a party to a contract, the fact that CGP and Nanula were not parties to the PSA is not dispositive. 100-5, Ex. We are a boutique owner-operator of upscale private golf & country clubs nationwide. No. (Doc. (Doc. Civil Action 19-4540-KSM (E.D. No. Nonetheless, even finding that Concert Defendants actively concealed their relationship, there is no evidence that this relationship was material information that deceived PCC into entering into the PSA. 100-29, Ex. (Id. 149-1 at 90. No. ), filed by JAMES STEVENS. A: Possibly. (emphases added)).) No. but in reality he was planning to actually spend less than $5 million, would you have still voted to sell the club to Concert Golf? 100-5, Ex. (Id. 100-18, Ex. 100-18, Ex. Pennsylvania has adopted the Restatement (Second) of Torts 550, which imposes liability for intentional concealment of material information regardless of a duty to disclose.). NPT cites two cases for the proposition that the question of materiality cannot can be decided at the summary judgment stage unless the issues are so obviously important that reasonable minds cannot differ on the question of materiality. U at 62:16-63:19.) Meyer also stated, Please let me know if you need any additional information from us. (Id.) Section 550 applies to fraudulent concealment claims (i.e., active concealment), while Section 551 applies to fraudulent nondisclosure claims (i.e., mere silence). A.) 149-1 at 58; Doc. Third, even though Silverman testified that his opinion would have changed had he known that Concert told Ridgewood to stay down, Silverman is but one vote. (Compare Id. (KARPF, ARI) (Entered: 01/14/2019), (#2) NOTICE of Appearance by DAVID KORSEN on behalf of JAMES STEVENS (KORSEN, DAVID) (Entered: 01/07/2019), DEMAND for Trial by Jury by JAMES STEVENS. (See Doc. 100-2 at 8-22.) AUGUSTA, Ga. (WJBF) The agreement to hold concerts at Lake Olmstead Stadium has hit a sour note. (Doc. 16 at 4-5 (There is no regard for the agreement between Philmont and Concert golf [sic] and I will clearly go on the record of saying Concert stole Philmont and to date has yet to live up to any of the declarations in the agreement . 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. (explaining that concealment involves the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact). (See Doc. ), Ridgewood. Each side had the same ability to obtain an appraisal and understand the potential worth of the Property and Club. Even viewing the evidence in the light most favorable to Plaintiff, the Court cannot find evidence from which a reasonable juror could infer that knowledge of CGP and Ridgewood's relationship would have changed PCC's course of action or the result (i.e., no reasonable juror could find that disclosure of their relationship would have led to a bidding war and, therefore, increased profits on PCC's behalf). They have an outstanding team that truly care for their clientsI have been awarded a fair six figure settlement. No. 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? . 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. In response, Nanula explained that PCC had two choices: (1) they could either get the full proceeds of the sale of the Property, if a sale ever even occurred, and bear all the risks and costs during the process or (2) allow CGP to rescue and fix the club now without taking any risk or bearing any cost at all. (Id.) 100-5, Ex. (Id. 116 at 28 (Rather, the Defendants were the only source of the information that they were working together behind [PCC's] back to acquire Philmont Club at a cut rate price. (Doc. Celotex, 477 U.S. at 323. To support its position, NPT also cites Silverman's statement that he would not have approved the sale knowing what he knows now: For these reasons, the Court grants summary judgment in favor of the Concert Defendants on NPT's 550 fraudulent concealment claim. This field is for validation purposes and should be left unchanged. 116 at 29. 100-23, Ex. at 22.) 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.) No. ), On November 21, Plotnick emailed Nanula his thoughts on some deal points as well as a few tweaks to [the] deal structure. (Doc. So getting them to back off to a small fee will be difficult. (Id. W at 111:19-112:7. The Motion by Concert Plantation and PGCC to continue/delay the trial is DENIED. 149-1 at 30-31.) Mail Class Action Notices mailed to class members/former PGCC equity members. Nanula responded, It looks like Marty was involved in a muni bond-rigging scandal in the late 1980s, and that it would be hard for [CGP] to work with him based purely on reputation concerns. (Id.) (Id. He served 4 years of active duty service in the Army as a Judge Advocate with the rank of Captain. 20 to Ex. After the call, Nanula emailed Fields, attaching a signed non-disclosure agreement and requesting information about PCC, including detailed income statements, [a] listing of recent capital improvements made, and the current list of potential capital projects (with estimated scope and costs, if any) that are being considered, and [a] summary of your current real estate deal and the Toll [Brothers] deal. (Doc. Case Summary. Final Judgment entered in favor of PGCC and Concert Plantation. 5354.) Q: And why is that? 100-5, Ex. . (See id. Considering that this cost is a significant percentage of the overall purchase price of $170,000, and that it was necessary to perform the work to use the property, and resolving any doubt in favor of Appellants, we conclude that the existence of the sewer defect was a fact basic to the transaction.). Pa. 2013) (Haywood's motion for summary judgment must, therefore, be denied because the University, if it proves the other elements of a claim for breach of contract, may be entitled to nominal damages.). Pa. 1996) and In re Westinghouse Sec. No. First, NPT has not pointed to any evidence showing that CGP and Ridgewood's partnership was a fact basic to the transaction. No. (Id.) (Doc. 2:11-cv-1588-TFM, 2014 WL 2808097, at *19-20 (W.D. (Doc. However, Meyer also testified had he known that Nanula was speaking with another potential buyer to not continue to approach PCC, that information would have been disconcerting to him. 100-18, Ex. As a kicker' if we are fortunate enough to get the zoning approval we are seeking, we will add another $1 million to the purchase price for a total of $6 million.); id. Co., 920 F.Supp. 149-1 at 37.) Specifically, NPT alleges that CGP falsely represented that it would make $4 million in initial capital improvements upon acquiring PCC and another $5 million in capital improvements upon the sale of the Property when, in fact, it never intended to expend[] the full amount or engage in those projects as represented. (Id. at 118:3-9. Not interested. (Doc. Public Records Policy. As an experienced leader in these types of lawsuits, we were confident the firm would have the expertise. The Class files its response opposing any continuation or delay, Hearing before Magistrate Bailey regarding numerous requests for documents, Deposition of Class Representative A. Anderson. ), In its response, NPT asserts that the Concert Defendants' argument that the gist of the action doctrine bars the fraud claim necessarily fails because the Court already found the gist of the action doctrine inapplicable. (See Doc. It also never contracted to perform services for Rumsey, and it was not part of an employment relationship with Rumsey. "Concert Golf's value-added approach to operating clubs, combined with its operating expertise, has positioned the Company well to bring its best practices to new locations and enhance the experience for private club members," added Dilshat Erkin, Senior Vice President at Clearlake. (Doc. ] (emphasis added)).) (Doc. Units and lots are referred to interchangeably. (Doc. ), On September 12, Nanula sent several follow up questions to Silverman, which Silverman answered. 11 (January 20, 2017 email from Grebow to Nanula, stating Meeting with the manager went well . at 65-67.) . 100-24, Ex. W, 54:10-22).) ), On December 12, Nanula met with PCC's membership and gave a presentation on CGP's proposal to acquire the Club. A; Doc. (Doc. (If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract . No. 100-7, Ex. 100-28, Ex. If the suit cannot be resolved through mediation, the plaintiffs want a jury trial. (See July 19, 2022 Hr'g Tr. 116 at 25 (addressing only whether there was a business relationship between PCC and CGP/Nanula, as they were discussing a business transaction, not whether CGP and Nanula were parties to the business transaction).) Refund amounts are based on the current Bylaws when the members resignation occurs. Disagreements over what inferences may be drawn from the facts, even undisputed ones, preclude summary judgment. MM at 149:22-150:4.) 149-1 at 11, 52; Doc. 21 to Ex. I think that shows we are for real and committed to getting this deal done.). But see id. The Third Circuit noted that while Pennsylvania courts have adopted the duty to speak requirement, the cases leave us uncertain of the extent to which Pennsylvania law includes the Restatement's discrete criteria for when a duty to speak arises and then interpreted two Pennsylvania cases, one in which latent problems were not discoverable by other reasonable means and one in which one party was the only reasonable source of the information. Id. No. CGP proposed to (1) pay off PCC's approximately $963,000 in debt, (2) assume or restructure capital leases and other obligations, (3) make approximately $4 million of initial capital improvements to Philmont Club within 12 to 14 months, (4) commit to fund ongoing capital reserve at three to four percent of revenues (approximately $1 million over five years), and (5) upon the sale of the Property in two to four years, make an additional approximately $5 million in capital improvements. ), On November 30, Meyer emailed Nanula the contact information for NVR and NPT/Metropolitan as a potential developer Nanula could work with for developing the property. (Doc. The PSA was executed on February 6 by Nanula on behalf of Concert Philmont and Concert Philmont Properties and Meyer on behalf of PCC. 149-1 at 14.) (Doc. W at 117:17-118:9.). 59 at 27-32.). It is clear that NPT believes it has been wronged. . No. ), 3. The Class is defined as: All individuals (or their guardians or representatives) who had an effective resigned equity membership before April 1, 2016, and who have not received their full refund amount., Written Order granting Class Certification issued. . (Id. No. ), H. PCC Sells Philmont Club to the Concert Defendants, On November 17, PCC's Board of Directors approved CGP's proposal. (Id. Shortly after the AOS was executed, however, NPT learned that a 2014 zoning change meant the Property could only yield 105 units by-right. (Doc. A does not disclose to B the fact that no highway is actually planned. No. The Court dismissed the fraud claim asserted against Ridgewood, Plotnick, and Grebow and the fraud claim asserted against CGP and Nanula to the extent it was based on representations about the riskiness of developing the Property or retaining 27 holes of golf, finding that NPT failed to allege justifiable reliance. No. A). 173.) 100-26, Ex. That Ridgewood could net a significant return from partnering with CGP does not mean that PCC was swindled. See The Roskamp Inst., Inc. v. Alzheimer's Inst. However what surprised us most was the high level of excellent customer service from the firms staff! 22 to Ex. No. ), 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. 100-29, Ex. No. if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question. Restatement (Second) of Torts 551; see also Gnagey Gas & Oil Co., Inc. v. Pa. See Schutter, 2008 WL 2502132, at *2, *6-7 (granting summary judgment on fraudulent omission claim under 551 and holding that a hostel's bed capacity was not basic to the transaction, even though the plaintiff only purchased the hostel based on his understanding that the hostel had a 70-bed capacity and sought to cancel the agreement of sale after learning that the hostel's bed capacity was in fact only 54 beds). Sections 5.5(h) and 5.5(k) of the PSA provide (1) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the [Initial Capital Projects] currently estimated by the Parties to cost approximately FOUR MILLION AND NO/100 DOLLARS and (2) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the Phase II Capital Projects currently estimated by the parties to cost approximately FIVE MILLION AND NO/00 DOLLARS. (Doc. No. Concert Golf acquired 36-hole, 295-acre Philmont, which was founded as an all-Jewish club in 1906, in February 2017 in a deal that involved the payoff of the clubs debt and other commitments and bought White Manor CC under a similar arrangement at the end of 2016, the Inquirer reported. (Doc. (Id. 3:21-CV-00816 | 2021-04-08, U.S. District Courts | Other | We disagree. (emphasis added). . (Id.) at 23. Equal Employment Opportunity Act (EEOA) - 42 USC 2000e No. 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.) the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . (Doc. . Now it is just a matter of executing. (Id.) Landsberg lodged a similar complaint. (explaining, by way of example, that a defendant is subject to liability if he reads a contract to the plaintiff and omits a portion of it or if he arranges stacks of aluminum sheets that he is selling [so] as to conceal defective sheets in the middle of the pile). (See Doc. . 100-5, Ex. (Id. Meyer testified that it would have been disconcerting to hear that Nanula had been speaking with another potential buyer about not approaching Philmont. ' (Doc. A: It - it might have. 116 at 26.) No. 2004) ([W]e hold that the District Court did not err in concluding that the doctrine barred Williams's claims against Ross, as well as his claims against Ladbrokes. Metal on Metal Hip Lawsuits & Settlements, Indian Law, Tribal Governance, Native Owned Businesses, Ruling granting class certification. at 60-64.) But the allegations in the initial Complaint are fundamentally different from those alleged in the Amended Complaint, which was filed after the Court ruled on Defendants' motion to dismiss and is the current operative complaint. the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . 2020-03-13, U.S. District Courts | Civil Right | Tom Kubik, the president of Plantation Golf and Country Club, told the Venice Gondolier Sun that inaddition to the reinvestment program, CGP willimmediately redeem all resigned member equity, exchanging current member equity redemption rights for those improvements.The full article about the sale of PGCC is availablehere. 116-12, Ex. 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. 5 to Ex. However, the amount of money the club saves from lowering refund amounts greatly outweighs the amount they have to pay in a few lawsuits over the refunds. 21 to Ex. As noted above, a defendant can be held liable under 551 only if there is a duty to disclose. NPT counters that New Jersey law applies, citing to a choice of law provision in the Confidentiality Agreement. At the conclusion of the meeting the Seller agreed to a minimal reduction in the sales price and unfortunately, without an Amendment to the LPA, we are forced to provide you this notice. (Id.) See generally id. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from those facts are matters left to the jury. ), to Plotnick's knowledge, there were no governmental approvals issued, or even applied for, that would permit the development of the Property with 160 or more units as of that date (see Doc. Although the meeting went well and the Township want[ed] to get the deal done (see id. at 5357.) 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. at 29; see also Doc. Like their neighbors, several Concert Golf Partners employees experienced damage to their homes and their hardship did not go unnoticed. (See Doc. . In the Amended Complaint, NPT, as assignee, brings a fraud claim against CGP and Nanula (Count I); a fraudulent concealment claim against all Defendants, brought pursuant to Restatement (Second) of Torts 550 (Count II); a fraudulent nondisclosure claim against all Defendants, brought pursuant to Restatement (Second) of Torts 551 (Count III); aiding and abetting fraud claims against Concert Defendants (Count IV) and Ridgewood Defendants (Count V); and a breach of contract claim against Ridgewood (Count VI). then the claim is to be viewed as one for breach of contract. 30, 2021) (finding that the gist of the action barred fraudulent inducement claim where the plaintiffs alleged that the defendant never intended to pay the plaintiffs the compensation they were promised under their contracts). No. WebRecapitalizing with a well-funded partner like Concert Golf Partners addresses the fundamental challenges many clubs are facing, even after more than a decade of (Doc. M.) The proposed Ninth Amendment had the same purchase price adjustment provisions as the proposed Seventh Amendment (which was not executed). 2003). Legal Name Concert Golf Partners, LLC. The key difference between the two is that a defendant can only be held liable for fraudulent nondisclosure under 551 if a duty to disclose exists, while a defendant can be held liable for active concealment under 500 even if a duty to disclose does not exist. 944 F.3d 1259 (10th Cir. Nanula told Plotnick, however, that if a consensus was not reached, Meyer may come back to you, and ask for $7m instead of $5m. (Id.) 1491 at 53; Doc. ), On February 1, PCC's membership voted to approve the PSA. A. In this same vein, a fraudulent inducement claim premised on an the allegation that a party to the contract never intended to abide by a provision in the contract is barred by the gist of the action doctrine. . Presently before the Court are the Ridgewood Defendants' and the Concert Defendants' motions for summary judgment. 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 decision [to resign]. (emphasis added)); id. 2:22-CV-00358 | 2022-01-27, U.S. District Courts | Civil Right | . Oct. 16, 2018) ([T]he Court holds that Diversified's no damages' argument does not support granting summary judgment to Diversified as to Stevenson's breach of contract claim.); Fagal v. Marywood Univ., Civil Action No. Accord id. at 501-02 (quoting Colton, 231 F.3d at 58 898-99). Believes it has been wronged and gave a presentation on CGP 's.! Of Sale n't answer to improve your online experience, for more please! Done. ). ). ). ). ). ). )..! 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