concert golf partners lawsuit
by concealment or other action intentionally prevents the other from acquiring material information. Restatement (Second) of Torts 550. at 35.) A (September 23, 2016 email from Plotnick to Meyer about wanting to discuss a potential relationship at Philmont); Doc. . 100-5, Ex. Equal Employment Opportunity Act (EEOA) - 42 USC 2000e 125-4, Ex. A subsidiary of Concert Golf Partners that controls the Plantation See Wen, 117 F.Supp.3d at 683. 22 to Ex. No. at 496-97, 503-04. Ultimately, the Seventh Amendment to the AOS that was executed did not include any purchase price adjustments and merely extended the due diligence period to September 16, 2016. Concert Golf Partners bought Blue Hill CC in 2015, after the club was struggling with about $5 million To the contrary, the record shows that PCC was aware that CGP, a golf operator, would want to partner with a developer to develop the Property, that PCC's then-President had passed along the information for a potential developer, and that under the terms of the PSA, the second phase of capital improvement projects would occur only after the sale of the developed Property. It also never contracted to perform services for Rumsey, and it was not part of an employment relationship with Rumsey. 100-5, Ex. ), Following Plotnick and Meyer's October 10 phone call, Nanula had a 42-minute conversation with Plotnick. ' Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204, 229 (3d Cir. (Doc. at 36.). 100-35, Ex. at 12:4-24 (Silverman's testimony that he never spoke with anyone from Ridgewood and that there were no in-depth discussions with Ridgewood and it really wasn't in the forefront because otherwise he would have known more about it and been more involved); id. 100-10, Ex. (Doc. the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . No. 6:18-CV-01685 | 2018-10-09, U.S. District Courts | Other | WebAbout Concert Golf Partners. 124-1 at 9. ), After Meyer reviewed CGP's proposal, he responded, I thought upon closing the real estate transaction we would have the full proceeds of the sale available towards capital improvements but I'm only seeing $5M listed. (Doc. (KARPF, ARI) (Entered: 12/31/2018), U.S. Courts Of Appeals | Other | at *3-4 (finding that the defendant-insurance adjuster was a party to the transaction for purposes of 551 despite the fact that the adjuster was not named in the insurance policy or any other contract). No. 100-15, Ex. No. at 654 (discussing materiality in the context of a breach of contract claim in an insurance case and an insurer's post-loss investigation). A). No. This case was filed in U.S. District Courts, Florida Middle District. Speaking of PCC's Board, Nanula surmised, They need us, they want us, and they have capitulated in every respect. 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? 647, 654 (E.D. Ruling favors golf club in lawsuit filed by former members 2020-03-13, U.S. District Courts | Other | Operating Status Active. Stallone, who knew of CGP's proposal, responded by comparing NPT's offer of a guaranteed $5 million for the Property to CGP's proposal: [I]f the club accepts the offer on the table from Center [sic] Golf, it only gets $5 million for the same land and that $5 million is at risk with contingencies. (Id. (Compare Doc. 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. Nanula testified that he chose to work with Ridgewood instead of NPT because he had found out that some of NPT's principals had criminal convictions and CGP tends to avoid people with criminal records in [its] business dealings. (Doc. of Am., Inc., Civil Action No. (Id. (only citing SOF, 202, which in turn cites to an internal Concert email (Doc. That's because she at 2-3 (The primary motivation behind my resignation has been Concert Golf's refusal to respond to my repeated requests (i) to confirm in writing . For example, on November 19, two days after PCC's Executive Committee voted to accept CGP's proposal, Nanula told Plotnick that the Board want[s] to move fast and get this closed asap. (Id.) 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). (Id. was basic to the transaction. (See Doc. ), On October 21, Plotnick emailed Nanula [his] initial thoughts to a structure of a deal between CGP and Ridgewood at PCC. Under Concert Golf, the club will be debt free and run by a professional golf club company, the Post reported. 20 to Ex. 100-28, Ex. ClubCorp and Morningstar are both golf course operators. . ), NPT also misstates the Court's prior Memorandum when it posits, The Court has similarly observed that the gist of the action doctrine does not bar fraud claims where the defendant never intended to keep its promise to do something in the future. (Doc. at 23. 100-5, Ex. 149-1 at 71.) Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. (Doc. No. (See, e.g., Doc. Pennsylvania. The Class files additional arguments explaining why the Receipt and Releases were never valid. (Doc. No. Holdings, LLC, Civil Action No. Pa. 2009) (collecting cases); see also First United Bank & Tr. Ridgewood appears to argue that Pennsylvania law applies. The Motion by Concert Plantation and PGCC to continue/delay the trial is DENIED. On December 6, Stallone, on behalf of NPT, sent Marina Katz, a PCC member, an offer to purchase the Property for $5 million. In a later email, he also attached a much more likely-and more detailed-list of our initial capital projects at Philmont CC, which were [n]ot to be shared with [opposing counsel] or Seller. (Id. at 120:10-121:2 (I mean everything that they undertook required it to be redone or needs to be redone again . W at 119:20-120:6; see also id. 2000))); Boardakan Rest. Fraudulent Concealment and Fraudulent Nondisclosure Claims, In Counts II and III, NPT, as PCC's assignee, asserts fraudulent concealment and fraudulent nondisclosure claims against all Defendants under Restatement (Second) of Torts 550 and 551, alleging that the Concert and Ridgewood Defendants failed to disclose that they were working together and actively concealed their relationship. at 59, Appendix A to the PSA. 116 at 28-19 (Ridgewood and CGP also had a duty to disclose their relationship because disclosure was necessary to prevent Ridgewood's backing out of its promise to make an offer to [PCC] from being misleading.).) at 117:14-16 (Well, obviously learning of some of these negotiations behind our back is a little -you know, unsettling.). No. (Doc. No. 1 to Ex. Federal courts applying Pennsylvania law have agreed with the impropriety of summary judgment in such a situation. 100-7, Ex. The change of bylaws without consent from resigned members is a self-serving business practice by PGCC. Meyer wrote about the potential advantages of a transaction with CGP, including that CGP would: (1) pay off all of [PCC's] current debt and obligations (mortgage, line of credit, capital leases and other) which approximates $1,000,000; (2) commit to invest approximately $4,000,000 into the Club immediately over a 12-24 month time frame; (3) commit to fund ongoing capital reserves at 34% of annual revenues, equat[ing] to approximately $1,000,000 over a five year period; (4) commit an additional $5,000,000 towards various agreed upon projects [u]pon closing the real estate deal; (5) freeze dues increases for two to three years and limit annual increases thereafter; (6) eliminate assessments; and (7) guarantee [] maintaining 27 holes of golf after the South Course land [] sold. (Id.) I don't know the answer to that question.).) Silverman's testimony that he would not have voted to approve the PSA had he known of Ridgewood and CGP's relationship may show that that fact is important and Silverman wished he had known it, but it does not show that the fact is basic to the transaction. ), Cicero agreed that the return Ridgewood would receive under the proposal seems awfully high instead of just some set fee that is relatively nominal. (Id.) No. (See Doc. Wen v. Willis is illustrative. United States District Court, E.D. No. 173.) Nos. Ins. He served 4 years of active duty service in the Army as a Judge Advocate with the rank of Captain. Board members and staff made the decision to change the bylaws, knowing it would harm the resigned members. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See Williams v. Hilton Grp. NPT planned to develop the Property and sell the developed lots to NVR to build homes. In so arguing, NPT cites to this Court's August 12, 2021 Memorandum, in which the Court cited to Bucci v. Wachovia Bank, N.A., 591 F.Supp.2d 773 (E.D. 116 at 26.) Please Update this case to get latest docket information. It will be paid in installments as summarized below but 100% of the money is guaranteed with no contingencies on Township approvals or environmental issues. Litig., 90 F.3d at 714 (in the context of securities litigation, discussing whether the alleged misrepresentations or omissions are so obviously unimportant to an investor); Parasco, 920 F.Supp. Consequently, the minutes of this meeting proves the board members and legal committee were aware of the Self Serving Business Practices in use when changing redemption bylaws without consent. That same day, Stallone also sent Nanula NPT's sketch plan for the Property, which had been prepared by NPT's engineer. No. . A (Given these benefits and the operational and management obstacles we continue to experience, the Board of Directors is pursuing a transaction with [CGP]); Id. WKAR relies on individual ), About a week later, on September 14, NPT provided NVR with formal notice of [its] intention to terminate the AOS. (See Doc. 59 at 27-32.). 100-28, Ex. No. Ultimately, only Concert Philmont took title to any property. Public Records Policy. the law ordinarily infers that damage ensued, and, in the absence of actual damages, the law vindicates that right by awarding nominal damages.' 5 to Ex. No. No. No. A (September 28, 2016 email from Michael Tulio, then-Vice President of Land Acquisition at Metropolitan, stating, I'm willing to post a deposit of 750K to show our commitment and when the zoning portion is approved and the appeal period passes I will release to the club 375K, then after the Environmental release the balance making it fully non refundable and for the club to use as they see fit. 1996)).) 149-1 at 204. No. No. 116-14, Ex. In In re Rumsey Land Company, LLC, the Tenth Circuit considered whether a 551 fraudulent nondisclosure claim could be brought against a third party in the context of a land sale. In re Rumsey Land Company, LLC is instructive as to whether the Ridgewood Defendants were parties to a business transaction under 551. MM at 186:17-188:12 (Meyer testifying that on November 2, 2016, he told Nanula he believed that PCC would receive the full proceeds of the sale of the Property to go towards capital improvements (i.e., phase two of the capital improvements projects) instead of just $5 million, that he ultimately understood Nanula's rationale to limit PCC's recovery to $5 million of the proceeds of the sale of the Property given the risks and costs of the development process, and that he decided to move forward with the transaction anyway because PCC was in a position of financial weakness and didn't really have a whole lot of room to negotiate); Doc. 116-19, Ex. But, at the summary judgment stage, the Court may not make credibility determinations. Ins. j (emphases added); see also Schutter, 2008 WL 2502132, at *6; Youndt, 868 A.2d at 551. at 25-27 (providing that Concert Philmont LLC would pay approximately $4 million for the initial capital projects and approximately $5 million for the second phase of capital improvement projects); id. See generally id. Civil Action 19-4540-KSM (E.D. 16 to Ex. Defendants file a Motion for Summary Judgment requesting that the Court decide the entire case based on the evidence without the need for trial. 100-5, Ex. No. 116-13, Ex. 3 to Ex. Co. v. Coutu, Case No. During oral argument, NPT implied that this inconsistency in testimony rendered Meyer not credible. No. 149-1 at 63; Doc. 100-5, Ex. 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. Those who do decide to join with be charged lower club fees, such as $12,550 per couple for golf, roughly half the amount now charged. No. W at 36:20-37:13.). No. . And the golf course has not really been improved, uhm, to the level that it needs. Meyer responded, Marty [Stallone] seems like a good guy but that's your call. (Id. No. PCC did not suggest any capital improvements be made different from those described in the November 1 proposal. 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. at 1274-75. Deposition of Corporate Representative for Concert Golf Partners, LLC, Deposition of Corporate Representative for Concert Plantation, LLC, Deposition of Corporate Representative for Concert Golf Partners Holdco, LLC, Deposition of Corporate Representative for Golf GP II, LLC, Deposition of Corporate Representative for PGCC. A (Sent Glenn a proposal yesterday . No. Last, the Court denied the motion to dismiss NPT's breach of contract claim against Ridgewood, which was based on Ridgewood's alleged violation of a confidentiality agreement. 117 F.Supp.3d 673 (E.D. 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. 100 28, Ex. 1 at 177-85.) at 25:24-26:22 (Q: Would you have recommended that sale if you knew that Ridgewood had an interest in making an offer to Philmont, but refrained from doing so based on what Concert Golf - Concert saying they could get a better deal, would you still have recommended that deal? 100-5, Ex. ), After receiving Ridgewood's proposal, Nanula forwarded the email to Nick Cicero, a partner at Freestone Capital Management. 2015) (Under Pennsylvania law, if a party is able to prove breach of contract but can show no damages flowing from the breach, the party is entitled to recover nominal damages. (Doc. Co., 645 F.Supp.2d 354, 377-78 (E.D. Agreed Order is entered by the Court to simplify the discovery process. No. Plotnick also proposed that [u]pon the sale of the real estate, the net proceeds [would] flow through the following waterfall: [f]irst, 60/40 (Concert/Ridgewood) until all out of pocket costs have been returned to both parties; [s]econd, 100% to Concert for the next $7MM. No. ), 3. . No. Plantation Golf and Country Club is governed through bylaws established when the club first opened. (Id. Click Here to read our Client Testimonials, 1015 15th Street NorthwestSuite 1125Washington, DC 20005, 1605 Main StreetSuite 710Sarasota, FL 34236, 1325 4th AvenueSuite 1730Seattle, WA 98101, Guillain-Barr Syndrome and Vaccine Injury. 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. The following week, on October 10, Plotnick emailed the same documents to Matthew Glavin at Morningstar Golf & Hospitality, LLC. 116-5, Ex. (providing that NPT would work to obtain a text amendment to the current Township Zoning ordinance to (i) rezone the portion of the Property containing the Additional Land to the RSD-2 zoning district; and (ii) permit age-restricted townhouses to be permitted within the RSD-2 zoning district).). 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. 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.). 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. at 70-71. 100-29, Ex. 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.). No. And, like RLH, Ridgewood ultimately did not contract to buy anything from PCC. Concert Plantation & PGCC file their Motion for Summary Judgment to have the Court decide the breach of contract issue as well as decide whether the Receipt & Release forms signed by certain class members is valid. (Id. In addition, although the Court recognizes the distinction between 550 and 551 (i.e., the language of a party to a transaction versus party to a business transaction), the Court finds that the same reasoning applies here with respect to whether the Ridgewood Defendants were a party to a transaction for purposes of 550-NPT has not identified any transaction to which PCC and the Ridgewood Defendants were both parties. Ins. 149-1 at 83; see also Doc. W at 20:9-21:23; see also id. (Id. (See Doc. "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. However, in 2021, Meyer testified that in or around September 2016, Ridgewood made an informal offer for $5 million for the nine-hole Property. 100-29, Ex. No. A; Doc. No. If you do not agree with these terms, then do not use our website and/or services. 59.). 5:23-CV-00394 | 2023-01-31, U.S. District Courts | Civil Right | No. Nanula also stated that he would work on a preliminary proposal to share [that] week. (Id.) 100-26, Ex. Public Records Policy. Id. A.) No. 11 (January 20, 2017 email from Grebow to Nanula, stating Meeting with the manager went well . 124-1 at 29. But neither this assertion-nor the single citation to the record that follows-evidence active concealment of material information. Critically, these allegations involve duties that were outlined in the PSA. No. L.) Meyer testified that around the time of the September 7 meeting and thereafter, he understood that NPT and NVR were not getting along very well and NPT or Metropolitan was thinking about terminating their relationship with NVR (Doc. No. Not interested. (Doc. A grant of summary judgment on the sole basis of absence of provable damages, therefore, is generally improper. And the only two cases cited by Plaintiff and Defendants are not particularly analogous. July 18, 2014) (The New Jersey Supreme Court has held that proof of actual damages is not necessary to survive summary judgment on a breach of contract claim: the general rule is that whenever there is a breach of contract . In their motions for summary judgment, Defendants argue that: As assignee, NPT asserts a fraud claim against the Concert Defendants, which arises out of affirmative misrepresentations CGP allegedly made to PCC concerning capital expenditures. (See Doc. at 2 (stating that Concert Philmont LLC would establish and operate the Club); see also Doc. Silverman testified that, had Ridgewood reached out to. And the best part of all, documents in their CrowdSourced Library are FREE! 125-1 at 76 (Nanula gave Meyer his preliminary thoughts on a proposed transaction); id. 100-5, Ex. Nanula elaborated, In a normal deal where we are both fronting the land cost, I would still presume a straight-up 50-50 deal, but here the fact pattern and risks are different. (Id.). Corp., Civil Action No. Relator does not, however, allege any active concealment or suppression on the part of Omnicare. Filing 1 COMPLAINT against CONCERT GOLF PARTNERS, LLC, CONCERT PHILMONT PROPERTIES, LLC, CONCERT PHILMONT, LLC, JONATHAN A: . 149-1 at 19, 60, 64; Doc. Whether the Concert Defendants were parties to a transaction with PCC for purposes of 550 and 551 is a closer call. (Id.) (See Doc. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 100-5, Ex. The Initial Capital Projects were to be completed within two years of the closing date (i.e., before March 2019). 59.) Case Details Parties. Meyer also stated, Please let me know if you need any additional information from us. (Id.) When asked whether he, on behalf of PCC, decided to move forward with the transaction anyway, Meyer testified, [W]e were in a position of weakness, so we didn't really have a whole lot of room to negotiate. (Id. 100-8, Ex. 1996) (citation omitted). U.S. Courts Of Appeals | Other | b. 944 F.3d 1259 (10th Cir. 1.) at 60-64.) In December 2016-after PCC's Board approved CGP's proposal but before it approved the PSA-NPT approached PCC again about renewing the AOS. Inc., 811 A.2d 10, 14 (Pa. Super. On October 26, Nanula toured the Philmont Club. ), K. PCC Members Are Dissatisfied and Unhappy in the Years Following the Sale, In the years following the sale, many Club members resigned because they were displeased with how the deal panned out and how the Club changed. (Doc. 100-29, Ex. No. (Doc. 17 to Ex. The fact of the matter is that PCC was distressed and in need of capital; that CGP and Ridgewood took advantage of PCC's financial woes does not make the Defendants' actions unlawful. ), Silverman and Meyer testified that they were not aware of any damages the Club suffered by virtue of Ridgewood sharing the information with ClubCorp or Morningstar. Presently before the Court are the Ridgewood Defendants' and the Concert Defendants' motions for summary judgment. NPT is correct-it is undisputed that Defendants did not disclose that they were working together. ), This is consistent with Meyer's 2021 testimony that Ridgewood informally offered $5 million for the Property. 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. (See Doc. Restatement (Second) Torts 551(1) (One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.). 100-29, Ex. (quoting Colton, 231 F.3d at 898-99); accord U.S. ex rel. the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . NN at 267:21-268:1. After CGP Submits Its Proposal to PCC, CGP and Ridgewood Continue to Discuss Working Together and a Potential Deal, On November 2, Nanula emailed Plotnick to bring him up to date on PCC's reaction to CGP's proposal to purchase Philmont Club. Pa. 1996) and In re Westinghouse Sec. Theyre suing both PGCC and Concert Plantation LLC, a subsidiary of Concert Golf Partners that purchased PGCC in 2019. See Restatement (Second) of Torts 551(2)(a)-(e). ), Philmont independently of Concert . 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. But the only relevant question here is what facts PCC-not NPT-would have considered basic to the transaction. at 87.) ), On September 12, Nanula sent several follow up questions to Silverman, which Silverman answered. No. 149-1 at 19, 64.) (Id. . ), Under the AOS, the purchase price for the Property was based on a per unit yield; the AOS contemplated a minimum yield of 150 units. 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. Rumsey, and it was not part of Omnicare whether the Concert Defendants were parties to a with... 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