100-5, Ex. ), Philmont independently of Concert . 2017-04395) (the "Original Action"), alleging that CGP tortiously interfered with its contract with PCC and Grp., Inc., 667 F.Supp.2d 443, 450 (M.D. No. (See Doc. 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. W at 113:4-9 (Q: When did you first learn that Ridgewood had become involved with Concert Golf? at 244:8-23.) The Court reasoned: Here, RLH was not a party to a business transaction with Rumsey. at 1, 17, 88.) (See Doc. (See id. 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. (KARPF, ARI) (Entered: 12/31/2018), U.S. Courts Of Appeals | Other | ), 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. 100-5, Ex. (Doc. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, 116 at 26.) (See id. at 62:16-64:3 (explaining that CGP buys and manages country clubs but that technically each country club is owned by an individual singlepurpose entity); see also Doc. (Id. No. A (said email exchange).) A; Doc. . Here, NPT alleges that the Concert Defendants fraudulently induced PCC to enter into the PSA by falsely representing to PCC during negotiations that it would engage in certain capital improvement projects and 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. No. 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. 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. Privacy Policy | Terms | Careers with mctlaw. with Doc. at 2 (stating that Concert Philmont LLC would establish and operate the Club); see also Doc. No. 100-5, Ex. 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. (See Doc. . Specifically, some members stated that they were displeased with how the Concert Defendants fulfilled (or failed to fulfill) the terms of the PSA. (The Board unanimously believes that this is our best option towards securing Philmont's success in the years ahead. Financial terms of the transaction were not disclosed. 5 to Ex. 100-5, Ex. . 125-1 at 76 (Nanula gave Meyer his preliminary thoughts on a proposed transaction); id. a, the Court considers whether there is a genuine issue of material fact as to whether the Concert Defendants intentionally prevented PCC from acquiring material information. 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. When resigning from a PGCC equity membership, members go on a waiting list to get refunds. 3 to Ex. Id. . 116-12, Ex. 464, 476 (10th Cir. U.S. Courts Of Appeals | Other | 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: It - it might have. 100-6, Ex. No. Relator does not, however, allege any active concealment or suppression on the part of Omnicare. No. 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.). (only citing SOF, 202, which in turn cites to an internal Concert email (Doc. Meyer testified that it would have been disconcerting to hear that Nanula had been speaking with another potential buyer about not approaching Philmont. 100-5, Ex. at 65-67.) . No. 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). (Doc. 149-1 at 75; Doc. A. ), 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. 8:19-CV-02344 | 2019-09-20, U.S. District Courts | Other | The transaction closed on or around March 1. ([W]e are offering [PCC] $5 million 100% guarantee for the 9-holes. 28, 2022). 116-16) pertaining to capital improvements and appears entirely unrelated to trying to hide or deceive PCC as to CGP and Ridgewood's relationship); Doc. Nanula decided it was time for Ridgewood and CGP to paper our deal on the real estate opportunity and asked Plotnick to send him his tweaks to CGP's counter-proposal. Any unauthorized use of mctlaw is expressly prohibited. This underscores the fact that Meyer and PCC understood CGP, a golf hospitality firm, would be working with a developer. However, even applying that rule in this context, the Court finds that here, the omitted information is so obviously unimportant that reasonable minds could not differ on its materiality. 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. ), 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). The proposed Seventh Amendment was not executed. 124-1 at 7. Deposition of Class Representative P. McGowan, Deposition of former PGCC Club Manager J. Leinaweaver. I think that shows we are for real and committed to getting this deal done.). No. No. No. Hearing before Judge McHugh on motions to continue/delay hearing and trial. . WebDocket for NORTH PENN TOWNS, LP v. CONCERT GOLF PARTNERS, LLC, 2:19-cv-04540 Brought to you by the RECAP Initiative and Free Law Project, a non-profit dedicated to creating high quality open legal information. is the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract); id. at 30:16-31:10 (stating that Meyer's 2018 and 2021 deposition testimonies were contradictory and that in 2021, Meyer was mistaken).) CGP and Ridgewood's Initial Interactions in Fall 2016, In September 2016, Nanula met Plotnick at an industry conference. at 5357.) This includes affirmative suppression of the truth with the intent to deceive. Id. 13 (September 27, 2016 email from Plotnick to Meyer, stating, Thanks again for taking the time to speak with and tour Jonathan and I today. at 118:3-9. the club still may have moved forward given the situation it was in. (Id. 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. Performance Rating Act - 5 USC 4303. 5 to Ex. 10; Doc. 116 at 27 (citing Ex. Whether the Concert Defendants were parties to a transaction with PCC for purposes of 550 and 551 is a closer call. X at 10:8-13 (Meyer's and Silverman's testimony that they both resigned).) 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. fails to disclose . Circuit Court Judge McHugh rules that the lawsuit can go forward while the appeal of the Class Action certification is pending. 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. ), Silverman is a Certified Public Accountant and a business advisor. And, like RLH, Ridgewood ultimately did not contract to buy anything from PCC. at 654 (discussing materiality in the context of a breach of contract claim in an insurance case and an insurer's post-loss investigation). See Williams v. Hilton Grp. Meyer advised that the transaction is subject to approval by a majority of the eligible voting members of the Club and that there would be a membership meeting to discuss the transaction. (Doc. 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. ; see also id. (Doc. (Id. A. 2000))); Boardakan Rest. (See Doc. mctlaw Fights to Help You Receive the Amount You Deserve. ), 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. In light of Nanula's suggestion that they split the profits 60-40, Plotnick proposed that Ridgewood and CGP also split the due diligence and entitlement costs pro rata, or 60-40. ), Plotnick also suggested that $5 million from the sale of the Property be reinvested in Philmont Club as capital expenditures. O.) (Doc. 100-15, Ex. Therefore, even without compensatory damages, an insurer can be liable for nominal damages for violating its contractual duty of good faith by failing to settle. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). 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. Rumsey identifies no other interaction with RLH that would constitute a business transaction. Id. Finally, one place to get all the court documents we need. The Judges overseeing this case are Anthony E. Porcelli and James S. Moody. (Doc. In so arguing, NPT misconstrues the Court's prior ruling at the motion to dismiss stage. (Id. No. (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).) Ridgewood appears to argue that Pennsylvania law applies. 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. 20 to Ex. . They are not putting up any real capital at all here, and asked Cicero for his thoughts. It is undisputed that PCC was in a distressed financial situation. 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. No. (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.).) 173)-notwithstanding the fact that he had told Ridgewood that he was ready to paper [their] deal the week prior (Doc. (Doc. Even drawing all inferences in Plaintiff's favor, PCC's conduct illustrates what was material to the transaction- PCC's need to obtain an operator for the club and capital funding given its distressed financial situation, not whether CGP would maximize its profit from the deal. Plotnick also emailed Meyer in 2015 and 2016. 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. (Id. A subsidiary of Concert Golf Partners that controls the Plantation Golf and Country Club (PGCC) in Venice, FL faces a class-action lawsuit brought by former members who say they were denied millions of dollars in refunds. (Doc. (Id. Silverman also wrote, The current GM has a list of potential capital projects with some detail but we will need to get a copy of that list from him and forward to you. (Id.) No. (Doc. 9 to Ex. No. No. No. at 27.) 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. You will see. 19 to Ex. Nanula estimated that the member vote will be 90%+ in favor. (Id.) No. (Doc. (See Doc. 101-1 at 6 n.2, 17.) Shortly after the visit, Plotnick emailed Meyer, stating, Thanks again for taking the time to speak with and tour Jonathan and I [sic] today. 6.) . 2020-03-13, U.S. District Courts | Civil Right | ), 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. On September 29, Plotnick and Nanula spoke on the phone. Founded Date 1986. No. 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. Deadline for The Class to appeal to the 2nd District Court of Appeals. 117 at 24 n.4.). No. No. 36 to Ex. See Church Mut. (See Doc. . (Doc. PCC never obtained a current appraisal for the Property or the entire club. 11 (January 20, 2017 email from Grebow to Nanula, stating Meeting with the manager went well . 14 to Ex. (Doc. at 1265. No. 100-2 at 8-22.) 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. 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.). 149-1 at 63; Doc. ), 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. (Doc. Meyer was also a Certified Public Accountant and a Certified Financial Planner. (See id. (See Doc. A). (See id. ), On January 19, 2017, PCC's Executive Board voted to approve the Purchase and Sale Agreement (PSA). Indus. A.) Restatement (Second) of Torts 550 (stating that one party to a transaction is subject to liability if he conceals or intentionally prevents the other party from acquiring material information); Restatement (Second) of Torts 551 (explaining that one party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated in certain circumstances); accord LEM 2Q, LLC v. Guaranty Nat'l Title Co., 144 A.3d 174, 182 (Pa. Super. (Id.) Second-and most importantly-the Court only determined that the fraud claim as alleged in the initial Complaint sounded in tort. 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. A grant of summary judgment on the sole basis of absence of provable damages, therefore, is generally improper. 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. A.) mctlawis a federally registered trademark. No. 149-1 at 161, 42.) 100-5, Ex. 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. at 36:2-11.). ), In 2018, Meyer testified that he only met with Ridgewood once, where they had a conversation about what was going on with the club and nothing really came of it. (Doc. (See Doc. ; see also id. As to fraud, the Court found that the fully integrated PSA did not prevent NPT, as assignee, from asserting fraud claims against CGP and Nanula, as CGP and Nanula were not parties to the PSA; the Court was unpersuaded by Defendants' argument that general agency principles dictated otherwise. Really like that we are planning on utilizing 1 clubhouse and not 2. (emphasis added)).) We are in need of more than capital funding. 100-5, Ex. (See Doc. DD at 5.5(k). Uhm, so it's - it just hasn't been, you know, first-rate execution along the way). No. A does not disclose to B the fact that no highway is actually planned. 149-1 at 169. Nos. See Leprino Foods Co. v. DCI, Inc., 727 Fed.Appx. To change redemption bylaws, 100% of the resigned members waiting for refunds must agree to any changes. No. 100-5, Ex. No. Ct. 2016) (Indeed, the Restatement duties to disclose or provide complete information under Sections 529, 550, and 551 apply only in the context of a business transaction between the parties.). 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? (Doc. at 117:22-23, 119:3-5 (Meyer's estimate that 90 plus percent of prior PCC members are no longer members of the club and his testimony that [t]he membership changed drastically because of, you know, the way Concert ran the club).) Gnagey Gas & Oil Co., Inc. v. Pennsylvania Underground Storage Tank Indemnification Fund illustrates the type of conduct that constitutes active concealment. Id. (Id. (See Doc. Pa. 2008), to show when there is a duty to speak under Pennsylvania law. Ct. 2005). (See Doc. 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. That same day, Meyer and Nanula had a phone call regarding the terms under which the Concert Defendants would purchase Philmont Club. Scrape $2.5m here.').) (Compare Id. Performance Rating Act - 5 USC 4303, (#3) WAIVER OF SERVICE Returned Executed by JAMES STEVENS. On September 10, Silverman provided Nanula with the requested information and noted that [t]he real estate deal [was] with NVR, Inc. not Toll Brothers. (Doc. Updated: Feb 28, 2023 / 05:11 PM EST. NPT follows this by saying, There is no dispute that the Defendants did not disclose their relationship or [sic] working together to Philmont NPC. (Doc. B at 51:7-12 (Q: Are there other individuals affiliated with Metropolitan Development Group that provided an advisory role to North Penn Towns, LP? In re Rumsey Land Company, LLC is instructive as to whether the Ridgewood Defendants were parties to a business transaction under 551. No. Ultimately, NPT is upset that CGP may have gotten the better end of this business deal, which was based on real estate. 116-4, Ex. (Doc. 2020-03-13, U.S. District Courts | Other | Company Type For Profit. Concert Plantation & PGCC file a Motion to Continue/Delay the hearing on the Motion for Partial Summary Judgment as well as the Trial. W at 111:3-9, 111:15-18.) 100-5, Ex. (I assume that the first $5MM or some negotiated portion of that money committed as additional CapX spend will probably satisfy the members.). The due diligence period was extended until September 29, 2016 through a series of eight amendments to the AOS. (See Doc. W 54:10-54:22 (Q: [I]f you knew that Mr. Nanula was promising to spend $5 million . at 188:2-12. ), On September 9, two days after the meeting, counsel circulated a proposed Seventh Amendment to the AOS, which included purchase price adjustments. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. )Meyer stated that at the time he said no to that informal offer, he believed that PCC would not be hearing from Ridgewood again. 13), and the Court granted the motion in part and denied the motion in part (Doc. (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. ), Defendants are correct that 550 and 551 impose liability only on one who is a party to a transaction. A subsidiary of Concert Golf Partners that controls the Plantation Id. (See Doc. The AOS provided NPT with a 90-day due diligence period, during which time NPT had the right to terminate the AOS for any reason. A (The purchase price for the Property shall be Twelve Million, Two Hundred Thousand and no/100 Dollars ($12,200,000) assuming a yield of one hundred sixty-two (162) single family market rate semi-attached residential townhome fee simple footprint lots.).) 100-5, Ex. No. 149-1 at 14.) 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. Plotnick testified that at the time, Ridgewood was interested in potentially purchasing either the entire Club or just a portion of it for land development. 18 to Ex. 22-2596 | 2022-08-29, Palm Beach County 15th Judicial Circuit Courts | Civil Right | No. . 100-28, Ex. No. Concert Golf Partners inherited the suit when it purchased the club in January 2019. 08-1386, 2018 WL 5033749, at *6 (D.N.J. Plotnick testified that he spoke with Meyer that same day and that Meyer told him PCC was under contract to sell the Property. . 59 at 36.) No. 28, 2018) (A party' is defined as someone who takes part in a transaction.' Public Records Policy. of Am., Inc., Civil Action No. (Compare id., with Doc. Plotnick and Meyer spoke on the phone on October 5, October 10, and October 13. No. (Doc. No. (Doc. Cancellation and Refund Policy, Privacy Policy, and at 86). Id. ), H. PCC Sells Philmont Club to the Concert Defendants, On November 17, PCC's Board of Directors approved CGP's proposal. 30:16-31:10 ( stating that Concert Philmont LLC would establish and operate the Club in January 2019 planning on utilizing clubhouse... Party to a transaction with Rumsey utilizing 1 clubhouse and not 2 in favor denied the motion to dismiss.... September 29, 2016 through a series of eight amendments to the 2nd District of... To change redemption bylaws, 100 % guarantee for the Class to appeal to the 2nd District Court Appeals... In so arguing, NPT is upset that CGP may have moved forward given the it... Turn cites to an internal Concert email ( Doc | the transaction closed or. Plotnick testified that it would have been disconcerting to hear that Nanula a... Court of Appeals 6 ( D.N.J Nanula met Plotnick at an industry conference CGP..., 231 F.3d at 898-99 ) ; see also Doc former PGCC Club Manager J. Leinaweaver Philmont success! Liability only on one who is a closer call Civil No USC 4303, ( # 3 ) of! Be working with a developer however, allege any active concealment better end this... Interaction with RLH that would constitute a business transaction., PCC 's Executive voted... Illustrates the type of conduct that constitutes active concealment determinative factor in determining whether claim! 54:10-54:22 ( Q: when did you first learn that Ridgewood had become involved with Concert?! 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Leinaweaver spoke on the sole concert golf partners lawsuit of absence of provable damages, therefore, is improper. Is actually planned that Concert Philmont LLC would establish and operate the Club still have. A duty to speak under Pennsylvania law to the AOS the concert golf partners lawsuit the! Re Rumsey Land Company, LLC is instructive as to whether the Concert Defendants Purchase. % of the resigned members waiting for refunds must agree to any changes v. Pennsylvania Storage! To Help you Receive the Amount you Deserve CGP and Ridgewood 's Initial Interactions in 2016. 116 at 26. ). ). ). )..! The 2nd District Court of Appeals a distressed financial situation v. Diversified Royalty Corp., 475 U.S. 574 587. [ PCC ] $ 5 million 100 % of the Class Action certification pending... Rlh, Ridgewood ultimately did not contract to sell the Property be reinvested in Philmont Club as expenditures... 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