at 29:15-31:10.) 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.). 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. 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. 124-1 at 8. 149-1 at 83; see also Doc. See Gnagey Gas & Oil Co., 82 A.3d at 501-02 (explaining difference between passive concealment and mere silence versus active concealment and suppression of the truth). 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. No. See Malone v. Weiss, Civil Action No. No. (Doc. 14 to Ex. 100-5, Ex. (Id. . No. (See Doc. No. 8:20-CV-01139 | 2020-05-15, U.S. District Courts | Labor | (See id. 3:21-CV-00816 | 2021-04-08, U.S. District Courts | Other | . 100-5, Ex. (See id. The agreed-upon Phase II Capital Projects included: South Course improvements; additional North Course improvements from Andrew Green's master plan; improvements to the tennis facility; clubhouse renovations; and construction of a new maintenance facility. ), About a week later, on September 14, NPT provided NVR with formal notice of [its] intention to terminate the AOS. (See 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. However, PCC agreed to keep the AOS alive with an Eighth Amendment, which provided for a limited 10-day extension of the due diligence period. A at 190.) On July 22, 2015, NPT and NVR entered into a Lot Purchase Agreement (LPA), which provided that NPT would sell the individual lots to NVR. . 22-2596 | 2022-08-29, Palm Beach County 15th Judicial Circuit Courts | Civil Right | Defendants file their response to The Class motion for a decision on its claims for breach of contract and other issues. See Restatement (Second) of Torts 551(2)(a)-(e). That same day, Meyer and Nanula had a phone call regarding the terms under which the Concert Defendants would purchase Philmont Club. (Doc. Meyer was also a Certified Public Accountant and a Certified Financial Planner. (Id. (Doc. No. . No. . No. 149-1 at 19, 64.) A: . . The Court also dismissed the civil conspiracy claim because NPT failed to plead actual malice. 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. For many members, the refund amount was 80% of the equity membership fee in effect on the effective date of resignation. M; accord id. The Class asks the court to help simplify discovery, Deposition of Class Representative C. Holloway, Court issues Order setting expert report deadlines. No. . If, however, the facts establish that the claim involves the defendant's violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort.). See, e.g., Plexicoat Am., LLC v. PPG Architectural Finishes, Inc., 9 F.Supp.3d 484, 487-88 (E.D. A; Doc. Where, as here, the precontractual statements that form the basis for the fraudulent inducement claim concern specific duties that are later outlined in the contract, courts in this Circuit routinely dismiss the claims as sounding in contract and thus barred by the gist of the action doctrine. 100-24, Ex. . Make your practice more effective and efficient with Casetexts legal research suite. . We will want to nod' to some master plan elements so the members are excited about their North Course being updated a bit, but we want to spend the smallest dollars possible to get the maximum member impact. (Doc. No. 100-28, Ex. A; Doc. 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.) & Cas. O.) . No. 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. ), Following Plotnick and Meyer's October 10 phone call, Nanula had a 42-minute conversation with Plotnick. 100-5, Ex. ), Age Discrimination in Employment Act (ADEA) - 29 USC 621-634 No. 124-1 at 11-12. 125-4, Ex. 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. 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. Warner Bros. 2017-04395) (the "Original Action"), alleging that CGP tortiously interfered with its contract with PCC and 2000))); Boardakan Rest. No. Id. X, 45:23-47:2, 65:20-66:21; Ex. at 77 (describing [t]he financial components of CGP's proposal); id. 100-18, Ex. . 100-19, 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 . To get in contact, fill out the form below, or call 888.952.5242. No. No. 149-1 at 37.) See Williams v. Hilton Grp. Co. v. Coutu, Case No. These are self-serving business practices in action at the expense of resigned members. A.) at 198:3-199:1.). 100-26, Ex. Plotnick also suggested that Nanula get feedback from Meyer and PCC's Board before putting their agreement in writing. No. at 70-71. at 54 (Here, NPT argues that Defendants had a duty to speak because the omissions were basic to the transaction' (i.e., PCC would not have entered into the PSA had it known that the development approvals were forthcoming and/or that Ridgewood and CGP were working together) and that subsequently acquired knowledge rendered previous representations Defendants made to PCC false . ' Toledo Mack Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204, 229 (3d Cir. This underscores the fact that Meyer and PCC understood CGP, a golf hospitality firm, would be working with a developer. No. No. No. 100-28, Ex. (Doc. No. ClubCorp and Morningstar are both golf course operators. at 62:1-10 ([The Court]: Do you have a case that shows Concert and Ridgewood couldn't do what they did; in other words, two companies can't make plans to acquire a company together unbeknownst to the seller? (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. WebAbout Concert Golf Partners. U at 58:2-19.) 100-18, Ex. We promised members $5m of Phase 2 capex, which will be more like $4.5m. But neither this assertion-nor the single citation to the record that follows-evidence active concealment of material information. No. No. As PCC did not execute the proposed Ninth Amendment upon receipt on September 26, the due diligence period deadline, approximately an hour and a half later, NPT formally terminated the AOS. 149-1 at 14.) No. No. A). 944 F.3d 1259 (10th Cir. 116 at 26.) 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. Nanula responded, Yes, but this firm is in advanced talks with club president about buying this 35 acre parcel from the club . 100-5, Ex. 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. Nanula wrote, If so, great - we will move ahead on our club deal, and start working with you on the real estate deal. (Id.) That is not what this Court held. No. 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.) 14 to Ex. There is scant case law on what constitutes a party to a transaction under 550 and a business transaction between parties under 551. No. (Id.) Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. So, this means that over 500 people are affected by the decision to change equity membership refund amounts, without giving proper notice or the opportunity to be heard. No. A ([T]he minimum Purchase Price will be no less than the product of $73,308.64 multiplied by 150 or Eleven Million, Two Hundred Ninety-Six Thousand, Two Hundred Ninety-Six and no/100 Dollars ($11,296,296) irrespective of Unit yield[.]).) Judge issues Order denying the rehearing requested by The Class. 100-21, Ex. No. 124-1 at 44.) 149-1 at 59. CC (describing CGP as a boutique private club owneroperator). (Id. j, illustration 3 (A sells to B a dwelling house, without disclosing to B the fact that the house is riddled with termites. 116 at 18 (citing Doc. . Viewing the facts in the light most favorable to NPT, the Court cannot find that there is no material dispute of fact as to whether Nanula and CGP are parties to the transaction for the purposes of 550 and 551. 100-20, Ex. ), 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. (Id. W at 27:1-10, 35:18-36:11, 46:4-8. Why is this public record being published online? Pennsylvania. (See Doc. The Judge immediately ruled in favor of PGCC and Concert on all counts and determined that The Class has no claims to present to a jury. . We are in need of more than capital funding. No. CGP and Ridgewood's Initial Interactions in Fall 2016, In September 2016, Nanula met Plotnick at an industry conference. Section 551 imposes liability when one . Ross served as the principal negotiator for Ladbrokes.All of Ross's alleged misrepresentations concerned matters governed by the Letter of Intent between Ladbrokes and Williams.). 116-13, Ex. (Doc. 100-2 at 23-24; Doc. ), filed by JAMES STEVENS. Concert Golf Partners is a well-capitalized owner-operator of golf properties nationwide. Plaintiff North Penn Towns, L.P. (NPT), as assignee of Philmont Country Club (PCC), has sued Concert Golf Partners, LLC (CGP) and Peter Nanula (the Concert Defendants) and Ridgewood Real Estate Partners, LLC (Ridgewood), Jonathan Grebow, and Michael Plotnick (the Ridgewood Defendants) (collectively, Defendants) for fraud, fraudulent nondisclosure, and fraudulent concealment under Restatement (Second) of Torts 550 and 551, aiding and abetting fraud, and breach of contract. 100-5, Ex. B. Benjamin Christian practices in the Firms appellate law group. X at 67:11-13; see also id. No. We are taking the risk in this scenario, not the club.); accord id., Ex. At no point did Ridgewood formally offer to purchase the Property or any portion thereof. (July 19, 2022 Hr'g Tr. Accordingly, we affirm the District Court's denial of the motion for summary judgment as to the breach of contract claim. (cleaned up)); Stevenson v. Env't Servs., Inc. v. Diversified Royalty Corp., Civil No. A comment to 551(e) provides: In the Court's prior Memorandum, the Court ruled on whether Defendants owed PCC a duty to disclose and, in particular, whether Ridgewood and CGP's relationship was basic to the transaction. ), CGP. On March 1, 2017, Ridgewood Philmont and Concert Philmont Properties entered into a Development Services Agreement (DSA), pursuant to which Ridgewood would be responsible for obtaining development approvals for the Property. 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. ), At the suggestion of PCC, the Concert Defendants also had brief communications with developer, NPT/Metropolitan, around this same time frame. (See Doc. In other words, the minimum purchase price was based on a lot yield of 160 units (rather than the 162 lot yield initially envisioned), and the overall purchase price was changed from $12.2 million to $12,049,382.40. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 17-cv-00209-RM-NYW, 2015 WL 1517022, at *4 (D. Colo. Mar. 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. 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. The proposed Seventh Amendment was not executed. (Id. Like their neighbors, several Concert Golf Partners employees experienced damage to their homes and their hardship did not go unnoticed. On September 27-the day after it terminated the AOS-NPT discussed the terms of the deposits it would render to PCC if PCC signed a new agreement of sale for the Property. No. Instead, driven by its distressed financial position, it chose to take the only deal on the table other than NPT's. Ins. ), 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. They have an outstanding team that truly care for their clientsI have been awarded a fair six figure settlement. 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.). at 98.) When resigning from a PGCC equity membership, members go on a waiting list to get refunds. United States District Court, E.D. He alleges only the failure to disclose. (quoting Colton, 231 F.3d at 898)). No. 17-1694, 2018 WL 827433, at *5 (E.D. The Court disagrees. ), On November 1, 2016, Nanula provided PCC with a formal written proposal for CGP's purchase of Philmont Club and the Property. Meyer testified that it would have been disconcerting to hear that Nanula had been speaking with another potential buyer about not approaching Philmont. A. PCC Decides to Sell Part of Its Property to Raise Needed Funds, PCC is a Pennsylvania non-profit corporation that owned and operated a private country club by the same name, Philmont Country Club (the physical premises of which are referred to as Philmont Club), located in Lower Moreland Township, Pennsylvania. 100-5, Ex. In the revised proposal, NPT offered PCC two options: either [a] purchase price of $12 million subject to zoning, land development, and environmental contingencies or [a] purchase price of $5 million for the Property as-is, plus $1 million conditioned on rezoning approval for 160 or more restricted townhouses. (Doc. 117 F.Supp.3d 673 (E.D. But see id. (See Doc. (See Doc. Units and lots are referred to interchangeably. 116 at 26-27.) (Doc. (Doc. 100-35, Ex. A (CGP's proposal that it would fund approximately $5 million in phase two capital improvement projects after a real estate transaction involving the sale of approximately 50 to 60 acres on the South Course). Specifically, some members stated that they were displeased with how the Concert Defendants fulfilled (or failed to fulfill) the terms of the PSA. 124-1 at 9; Doc. . 22 to Ex. 100-5, Ex. Not interested. (Doc. As an experienced leader in these types of lawsuits, we were confident the firm would have the expertise. No. 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. Concert Golf Partners bought Blue Hill CC in 2015, after the club was struggling with about $5 million (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. 100-5, Ex. Lake Mary, FL and Santa Monica, CA April 21, 2022 Concert Golf Partners (Concert Golf, CGP or the Company) announced today that it has received an investment from Clearlake Capital Group, L.P. (together with its affiliates, Clearlake). Nanula assured Meyer that CGP would find the right people to get this land transaction done. (Id.) VENICE What began as one lawsuit seeking a refund of an equity membership in the Plantation Golf & Country Club will go to trial next year as a class action involving hundreds of plaintiffs. P.) The following day, on December 1, Stallone sent Nanula the draft of the text amendment he presented to Lower Moreland Township's Board of Supervisors at its September meeting related to zoning. Concert Golf Partners is a boutique operator of private golf and country clubs headquartered in Lake Mary, FL. Concert Golf offers a personalized and curated approach to partnership and operates 25 private golf and country clubs nationally, including former developer-owned clubs and longtime member-owned clubs. 11.) As Jonathan mentioned, we very much intend to put a proposal in front of you, that at the least, we hope will open the stage for further discussion. (Doc. 2:19-CV-04540 | 2019-10-01, U.S. District Courts | Labor | To the contrary, the evidence shows that PCC did not even attempt to create a bidding war to drive up the sale price to increase its own profit when it received NPT's revised proposal in December 2016. W at 20:9-21:23; see also id. Such is the case here. This includes affirmative suppression of the truth with the intent to deceive. Id. No. 20 to Ex. Concert Golf Partners ("Concert Golf," "CGP" or the "Company") announced today that it has received an investment from Clearlake Capital Group, L.P. (together with its affiliates, "Clearlake"). Q: And why is that? ), L. Meyer and Silverman Later Learn About CGP and Nanula's Discussions and Are Disconcerted, Meyer did not learn that CGP and Ridgewood had been working together until after the sale. No. That Meyer and PCC never inquired further as to whether or not CGP had found the right developer after learning that CGP would likely not be moving forward with NPT/Metropolitan, coupled with the fact that Meyer recognized that it was CGP's call as to which developer to use, illustrate that CGP and Ridgewood's relationship was not a fact basic to the transaction. M.) The proposed Ninth Amendment had the same purchase price adjustment provisions as the proposed Seventh Amendment (which was not executed). Id. 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. ), NPT. ), Meyer testified that he did not have extensive conversations with Ridgewood but that he would be the most knowledgeable on the conversations that did occur. (Doc. No. (Id. No. No. This case was filed in was basic to the transaction. (See Doc. Co., 709 F.3d 487, 497-98 (3d Cir. He told me to call him back in 6 months.).). Id. The mere fact that Ridgewood showed interest in making an offer to PCC and followed up with telephone calls does not mean that they were parties to a transaction, whether business-related or not. ), Meyer testified that PCC hired Brown Golf Management as a consultant to help [it] run and operate the club, hopefully more efficiently than PCC had been running it. (Compare Doc. And although there was a mass exodus of members from the club, Meyer's testimony is that the membership changed so drastically because of the way Concert ran the club and because CGP did not act in accordance with what [it] said [it] was going to do-not because CGP used Ridgewood as the developer or because Ridgewood received a significant return. 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. (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. ), Age Discrimination in Employment Act (ADEA) - 29 USC 621-634 No. Notice of Appeal as to Class Certification filed by Concert, Notice of Appeal as to Class Certification filed by PGCC. The court found that those misrepresentations involved duties later enshrined in a contract. Id. Uhm, the bunkering that they've done . 9 to Ex. 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. 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). Corp., Civil Action No. (Id.) If PCC wanted to drive a harder bargain, it could have gotten an appraisal and tried to negotiate further and/or tried to attract other buyers. There is no evidence that PCC seriously considered NPT's revised proposal, which outlined two different options. The Club at Renaissance, Concert Golfs most recent acquisition, is located within an exclusive South Florida community. No. 100-25, Ex. ), Meyer testified that the Concert Defendants had discretion as to do what they wished as to the four general areas of capital improvements discussed and that the Concert Defendants did everything that was discussed. (See Doc. (Id.) PCC never obtained a current appraisal for the Property or the entire club. . 100-5, Ex. NPT relies on the evidence of disgruntled members to support its contention that Ridgewood and CGP's relationship was material. (See Doc. 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.) ' (citing Bucci, 591 F.Supp.2d at 783) (emphasis added).) 100-28, Ex. 100-28, Ex. 22 to Ex. No. ; see also id. LLC v. Gordon Grp. It is clear that NPT believes it has been wronged. J.) At first, PCC agreed to sell the Property to Toll Brothers, but Toll Brothers terminated that agreement in July 2014. ; see also Doc. . (See Doc. Nos. 2:22-CV-00358 | 2022-01-27, U.S. District Courts | Civil Right | DD at 8 (indicating that the purchase price included the unpaid principal balance and accrued and unpaid interest on PCC's Fox Chase Bank loan, which bore an original principal sum of $1.2 million); id. The Country Club sold to Concert Golf Partners, a company that owns and operates 19 upscale private clubs. Along with the sale came a plan to recapitalize. The Court concludes that no reasonable juror would find Ridgewood and CGP's relationship-and the profits they would garner from their separate and independent transaction-was material. W at 68:1-2 & Doc. 21 to Ex. No. Those eligible for the class action lawsuit include all individuals (or their guardians or estate representatives) who resigned their equity memberships before January 1, 2016, and have not received their full refund amount. 5354.) 116-10, Ex. No. Silverman explained that it would be easier to provide a summary of the current real estate deal with NPT verbally as [PCC was] in the process of receiving an amendment to the [AOS] that will better clarify the details. (Id.) W at 36:20-37:13.). Not interested).). 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