However, the amounts of the refunds are not discussed in the article. Meyer immediately forwarded to Silverman, stating, Hot off the press. (Doc. Q: Can you explain your answer, Mr. Meyer? Whether the Concert Defendants were parties to a transaction with PCC for purposes of 550 and 551 is a closer call. No. (See Doc. Co., 106 A.3d 48, 68 (Pa. 2014) (explaining that the nature of the duty alleged to have been breached . 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. We promised members $5m of Phase 2 capex, which will be more like $4.5m. ), Because NVR is a homebuilder and does not engage in real estate development, it assigned its agreement with PCC to NPT, a developer. Founded Date 1986. D at 282:10-24; see also id. Meyer testified that he told Nanula he understood Nanula's rationale. . 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. 149-1 at 75; Doc. (Doc. (Id. (KARPF, ARI) (Entered: 12/31/2018), U.S. Courts Of Appeals | Other | . Under the DSA, Ridgewood Philmont is paid a management fee for providing development services. Last, the Concert Defendants argue that summary judgment should be entered on NPT's 550 fraudulent concealment claim because NPT has no evidence that CGP or Nanula intentionally concealed a material fact from [PCC]. (Doc. Afterwards, Nanula requested additional information from Meyer, including documents on the real estate development, Toll / NVR deal terms, property survey, environmental reports and any information PCC had about the various capital projects it considered. (See Doc. See The Roskamp Inst., Inc. v. Alzheimer's Inst. Pa. 1996) and In re Westinghouse Sec. Nanula also stated that Ridgewood's proposal juices our normal deal returns nicely. (Id.) A.) Under the agreement, PCC (the Assignor) agreed to assign NPT (the Assignee), NPT initiated this action against Defendants on October 1, 2019. ), Ridgewood and CGP continued to keep in touch as things moved ahead with CGP and PCC. (See Doc. 1. 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. Pa. 2009) (collecting cases); see also First United Bank & Tr. No. ), The agreed-upon Initial Capital Projects consisted of: renovating the men's and women's locker rooms so that they met a modern country club standard; improving the North Course bunker, cart path, greens, and drainage and removing trees; renovating the pool and pool area; and upgrading the HVAC infrastructure. 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. (Doc. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 117 F.Supp.3d 673 (E.D. A (agreement between NPT and PCC, stating that the land to be sold is comprised of approximately 61.60 gross acres); id., Ex. Performance Rating Act - 5 USC 4303. No. 5 to Ex. (Id. Even more, this change came with no consent from resigned members waiting for their redemption. Compare Restatement (Second) of Torts 551, cmt. (See Doc. (Id. No. Operating Status Active. About a week later, on October 5, Plotnick emailed Tom Bennison from ClubCorp, attaching PCC's financials, including financial statements, profit and loss spreadsheets, and a 2016-2017 budget. 100-15, Ex. Second, the proposed Seventh Amendment provided that NPT would pay an additional $45,000 for each lot, if any, it was permitted to develop over 160 lots. ), In an email from months before the PSA was executed, November 21, 2016, Nanula emailed Brandon Collins at CGP, writing, The wild ideas the Board has about a master plan' for the North Course are probably way overblown, and we have huge capital needs in the clubhouse, HVAC, etc. 5354.) The Court concludes there is not. No. 13), and the Court granted the motion in part and denied the motion in part (Doc. 100-29, Ex. (See Doc. Cancellation and Refund Policy, Privacy Policy, and 100-5, Ex. 3 to Ex. No. (Doc. No. No. Public Records Policy. 14 to Ex. X, 45:23-47:2, 65:20-66:21; Ex. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. No. ), On September 9, two days after the meeting, counsel circulated a proposed Seventh Amendment to the AOS, which included purchase price adjustments. Viewing all the facts in the light most favorable to Plaintiff and drawing all inferences in its favor, the Court finds that a reasonable juror could conclude that the Concert Defendants' actively concealed their relationship with Ridgewood from PCC. No. U at 62:16-63:19.) 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. 2017-04395). 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. (See Doc. See Gaines, 354 F.Supp.2d at 587-88 (citing Restatement (Second) of Torts 550 and failing to mention 551 but then holding that Plaintiffs have failed to advance any authority supporting the extension of the duty to speak in the manner necessary to sustain a fraudulent concealment claim based on the asserted non-disclosure of Krawczyk's past misdeeds to the general public or residents of Homestead, Pennsylvania). ), Two days after the Club visit, on September 29, Ridgewood and PCC executed a confidentiality agreement to facilitate the sharing of information, pursuant to which Ridgewood agreed to not disclose or disseminate PCC's proprietary, non-public information. (Doc. Concert Golf Partners is a boutique operator of private golf and country clubs headquartered in Lake Mary, FL. at 34; accord Doc. Nanula concluded, If we can pull this off, we could get back some of our initial risk capital from future real estate proceeds - maybe zero, maybe never - and this prospect allows us to be interested in PCC. (Id., Ex. 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. 100-21, Ex. Disagreements over what inferences may be drawn from the facts, even undisputed ones, preclude summary judgment. 1995) to support its duty to speak test. Accordingly, we grant summary judgment to all Defendants on Counts IV and V. In Count VI, NPT, as assignee, asserts a breach of contract claim against Ridgewood, alleging that Ridgewood breached a confidentiality agreement with PCC by disseminating PCC's confidential information to two separate entities, ClubCorp and Morningstar Golf & Hospitality, LLC. 100-5, Ex. (See Doc. The proposed Ninth Amendment also contemplated extending the due diligence period through October 3, 2016 and stated that as of October 4, the due diligence period would further be extended for six months following the date on which the Township approved an amendment to its zoning ordinance. 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). On November 2, 2016, Nanula emailed Plotnick, I hope you guys will stand back, profess some concerns about the real estate risks, and just wait to see if I can strike a better deal for all of us here. In its response brief, NPT summarily asserts, without citation, The evidence clearly shows that the Defendants concealed their relationship and that concealment was material to the transaction at hand. (See Doc. 100-8, Ex. Further, there is no evidence from which a reasonable juror could find that the profits Ridgewood and/or CGP stood to gain were material to PCC. (Id. (See, e.g., Doc. Deadline for The Class to appeal to the 2nd District Court of Appeals. No. The Court is not persuaded. The first occurs when the defendant actively conceals a defect or other disadvantage in something that he is offering for sale to another. Id. The Court held oral argument on the motions on July 19, 2022. (Doc. ), CGP. No. No. 37 to Ex. No. . (Id.) Updated: Feb 28, 2023 / 05:11 PM EST. (September 17, 2018 resignation email from Scott Landsberg, stating The primary motivation behind my resignation has been Concert Golf's refusal to respond to my repeated requests (i) to confirm in writing . 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? The change of bylaws without consent from resigned members is a self-serving business practice by PGCC. But no reasonable juror could find from these facts that Ridgewood was a party to a business transaction. 6:18-CV-01685 | 2018-10-09, U.S. District Courts | Other | ), 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. D at 29:13-22.) Oral Arguments before the 2nd District Court of Appeals regarding the appeal by PGCC and Concert Plantation on Class Certification. . (See Doc. (Doc. (Doc. 100-25, Ex. 149-1 at 37.) See id. (Our proposal guarantees you all of the money that is currently at risk in the existing Center [sic] Golf offer.). 100-18, Ex. . at 89; see also Doc. (Id. (Doc. On December 6, Stallone, on behalf of NPT, sent Marina Katz, a PCC member, an offer to purchase the Property for $5 million. at 13:1-3; id. Second, although Meyer testified that it would have been disconcerting to him if Nanula told Ridgewood to stand down, he did not testify that that information alone would have changed his mind regarding approving the deal. Landsberg lodged a similar complaint. 116 at 29 (citing Ex. J (stating that the purpose, scope and intent of the development has substantially changed).) . When asked whether he would have voted to sell the club to the Concert Defendants had he known that Concert Golf was telling Ridgewood to stand down and not make any offer to Philmont in exchange for . No. j (emphases added); see also Schutter, 2008 WL 2502132, at *6; Youndt, 868 A.2d at 551. See Restatement (Second) of Torts 550-51; see also Gnagey, 82 A.3d at 501 ([T]he Colton court explained how and why the doctrine of active concealment' constitutes fraud even if there is no independent legal duty to disclose information, while the concept of mere silence' requires the disclosure of information only if there is a positive statutory, regulatory, or legal duty mandating disclosure. (citing United States v. Colton, 231 F.3d 890 (4th Cir. ), 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. at 88) and that Concert Philmont was not incorporated until January 23, 2017 (id. 100-5, Ex. 100-5, Ex. . Q: If two offers were given to you, to the club, is it fair to say based on your - your goal of maximizing return you would have picked the higher amount than the lower amount? Grp., Inc., 667 F.Supp.2d 443, 450 (M.D. No. No. W at 54:10-22 (Q: . (See Doc. A.) On September 6, 2016, NPT sent NVR a Notice of Material Change, stating that NPT could not satisfy the conditions of the AOS, including obtaining zoning approvals to the satisfy the unit yield anticipated by the LPA. at 27.) A: It - it might have. 149-1 at 30-31.) Celotex, 477 U.S. at 323. Contra Youndt, 868 A.2d at 551 (Appellants have alleged that Appellees knew of a defect in the sewage system that will cost approximately $28,000 to repair. 125-14, 173.) at 17)-i.e., after CGP and Nanula's initial November 1, 2016 proposal to acquire the Club and after Philmont's Executive Board voted to approve the PSA (id. This case was filed in (Id.) If zoning approvals were obtained from the Township, the Property could yield more units. The lawsuit alleged Lansing officers used excessive force and discriminated against DeShaya Reed, who is Black, because of her race. . Ct. 2002)). Critically, these allegations involve duties that were outlined in the PSA. The Motion by Concert Plantation and PGCC is DENIED. 100-7, Ex. 100-6, Ex. 56(a). (Id. at 50-53.) PCC was in a distressed financial situation and decided to sell a portion of its property (the Property) for residential development. 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. (Id. (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. A.) (Id. No. No. 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. 2:22-CV-00358 | 2022-01-27, U.S. District Courts | Civil Right | Meyer testified that it would have been disconcerting to hear that Nanula had been speaking with another potential buyer about not approaching Philmont. 10; Doc. 35 to Ex. (See Doc. 124-1 at 29. 116-10, Ex. 149-1 at 33.) When I say they went to bat for methis Law Firm literally did just that. . 100, 101.) (Id. This is a fact basic to the transaction.) with id., illustration 4 (A sells to B a dwelling house, knowing that B is acting in the mistaken belief that a highway is planned that will pass near the land and enhance its value. No. No. No. A: . No. X at 10:8-13 (Meyer's and Silverman's testimony that they both resigned).) Make your practice more effective and efficient with Casetexts legal research suite. No. 101-1 at 6 n.2, 17.) Silverman was but one vote. No. 100-5, Ex. Last, it provided that at closing, PCC would grant NPT a credit against the purchase price in the amount of $375,000; however, if NPT's costs to construct and install the clubhouse were less than $1.6 million, the purchase price credit would be decreased by one-third. 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. But neither this assertion-nor the single citation to the record that follows-evidence active concealment of material information. 1:21-CV-00455 | 2021-05-21, U.S. District Courts | Civil Right | (Doc. No. 22 to Ex. It is undisputed that PCC was in a distressed financial situation. . Nanula explained that CGP was in the early stages of trying to purchase Philmont Club and had received an initial proposal from golf-adjacent developer Ridgewood. 1996) (citation omitted). As such, the Court finds that 551(2)(b) did not impose a duty to disclose on the Concert Defendants. In Duquesne Light Co., the Third Circuit specifically enumerated the five circumstances in which a duty to speak arises under 551 (which again does not include the only source of information to the other party prong). (Id. ; see also id. 2019). No. (See id. No. at 117:14-16 (Well, obviously learning of some of these negotiations behind our back is a little -you know, unsettling.). in order to deal with member capex obligations, which could go higher than the $5-6m, and last, splitting the remainder of the proceeds 60-40 (60% CGP, 40% Ridgewood). at 1, 88. LLC v. Gordon Grp. (Id. Warner Bros. 08-1386, 2018 WL 5033749, at *6 (D.N.J. No. Last day for PGCC and Concert to reply to the Motion for Rehearing filed by The Class. 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. 100-5, Ex. at 36:20-37:13; see also id. (See Doc. Headquarters Regions East Coast, Southern US. (Id. On 06/06/2016 Polge filed a Civil Right - Employment Discrimination lawsuit against Concert Golf Partners, LLC. X at 67:11-13; see also id. Because the gist of the action doctrine analysis is dispositive and bars NPT from bringing its fraud claim against the Concert Defendants, the Court does not address the Concert Defendants' other arguments as to why summary judgment is warranted on the fraud claim. . 100-29, Ex. Plotnick added, In the meantime, we will continue to stand on the sidelines and let you do your thing. No. (Id. Pa. 2015). 2 to Ex. But the only relevant question here is what facts PCC-not NPT-would have considered basic to the transaction. 53 at 53-57; see id. 100-38, Exhibit GG.) Because we find that there is a genuine issue of material fact as to whether the Concert Defendants are parties to a business transaction under 551 or parties to a transaction under 550, the Court denies summary judgment on Counts II and II as to this argument. And, even to the extent that a statement about the mere intent to make an offer (i.e., a promise to make a promise) is a partial or ambiguous statement, as NPT posits, the Ridgewood Defendants are the ones who purportedly made this statement to PCC-not the Concert Defendants. Plantation refund lawsuit expands to 54 plaintiffs Earle Kimel earle.kimel@heraldtribune.com 0:00 1:33 SARASOTA COUNTY A lawsuit against 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. However, in Bucci, the court never analyzed the Restatement (Second) of Torts 551; rather, it mentions the Restatement only once, in passing, as part of a see also cite for when a duty to speak arises. The due diligence period was set to run from July 23, 2015 through October 21, 2015. ), Nanula incorporated this into the November 1, 2016 proposal that CGP sent to PCC. N.), D. CGP Expresses Interest in a Potential Transaction with PCC, Meanwhile, on August 30, 2016, Philmont Club member David Fields had a phone call with Nanula, the sole member of CGP. 100-24, Ex. Hearing before Judge McHugh on motions to continue/delay hearing and trial. He already knew about you and had been on your website. 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. 100-28, Ex. A: . No. The Class files its Answer Brief to the brief filed by PGCC and Concert Plantation appealing Class Certification. 116-14, Ex. NPT, individually and as PCC's assignee, asserted claims for fraud, breach of contract, conspiracy, and violations of federal antitrust law. 1 at 226-41. Cancellation and Refund Policy, Privacy Policy, and No. 149-1 at 63; Doc. ), Meyer testified that the Philmont that was sold to Concert Golf and the Philmont that exists today are two drastically different entities that has [sic] disrupted, you know, in my view the lives of all of its prior members. (Doc. 149-1 at 120, 123. (Doc. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from those facts are matters left to the jury. Not interested. (Doc. O.) No. 101-2 at 14). (Doc. On March 3, 2017, NPT initiated a lawsuit against CGP and PCC in the Montgomery County Pennsylvania Court of Common Pleas (Case No. Such is the case here. Relator does not, however, allege any active concealment or suppression on the part of Omnicare. . 100-28, Ex. 100-8, Ex. Thus, PCC could have learned this information (Ridgewood and CGP's relationship) from the Township, and not just the Concert and Ridgewood Defendants. B. ), During a mid-January 2017 email exchange with counsel about a draft of the PSA, Nanula wrote that the current Exhibit I cover[ed] the Big 4 of these projects, which included utility infrastructure; pool/porch/patio; locker rooms; and golf course. After receiving the contact information, Nanula stated that it would be hard for [CGP] to work with [Stallone of NPT/Metropolitan] in light of Stallone's criminal history, but added that [r]egardless, [CGP would] find the right people to get this land transaction done. (Doc. Meyer also testified that he did not believe the Concert Defendants necessarily acted in accordance with what they said they were going to do. (Id. 1.) Nanula said that Meyer understood and would be going back to the Board. (See id. (Doc. . ' (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. Defendants necessarily acted in accordance with what they said they were going to do Second ) Torts. Behind our back is a self-serving business practice by PGCC and Concert Plantation on Class Certification promised members $ of... Of 550 and 551 is a little -you know, unsettling..... Learning of some of these negotiations behind our back is a self-serving practice... Can you explain your answer, Mr. meyer and had been on your.. What inferences may be drawn from the facts, even undisputed ones, preclude judgment. 05:11 PM EST WL 5033749, at * 6 ; Youndt, 868 A.2d 551! 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