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. NORTH PENN TOWNS, LP, directly and as assignee of Philmont Country Club, Plaintiff, v. CONCERT GOLF PARTNERS, LLC, et al., Defendants. ), On November 21, Plotnick emailed Nanula his thoughts on some deal points as well as a few tweaks to [the] deal structure. (Doc. So getting them to back off to a small fee will be difficult. (Id. WKAR relies on individual 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.) 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. (See id. No. No. I cant recommend this firm enough. 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. 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. 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). Full title:NORTH PENN TOWNS, LP, directly and as assignee of Philmont Country Club, Court:United States District Court, E.D. No. 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. 16 to Ex. ), CGP. W, 36:20-37:9, 54:10-54:22).) (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. No. 116-5, Ex. 149-1 at 90. 100-5, Ex. No. No. (Id.) (Doc. No. The non-moving party must show more than the mere existence of a scintilla of evidence in support of its position. 3 to Ex. 100-10, Ex. ), Plotnick anticipated that the fully entitled residential development for approximately 160 age restricted townhomes is worth between $12-$14 million to a builder. (Id. No. 17-1694, 2018 WL 827433, at *5 (E.D. (Doc. 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. 14 to Ex. If zoning approvals were obtained from the Township, the Property could yield more units. 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. No. . A (I thought it would be proper' for us to advise Tom [King with NVR] that we are going to let the agreement expire in some manner.). These projects were to be completed within two years after the sale of the developed Property. (Doc. No. 149-1 at 37; Doc. 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. ), On August 26, 2021, NPT filed an Amended Complaint. (Doc. MM at 187:23-188:1.) When the bankruptcy court did not approve the sale, Pueblo Bank & Trust Company, LLC (PBT) purchased the property at a bankruptcy auction and then transferred the land to RLH. 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. (Doc. (Doc. The Court is not persuaded that the Concert Defendants' behavior shocks the conscience or that the Concert Defendants trapped PCC into a deal, the substance of which it was unaware. (Id.) (See Doc. No. No. K.), NPT cites an unsigned Third Amendment to the LPA, which was circulated on September 26, to support its assertion that NPT and NVR eventually did come to an understanding. (See Doc. at 188:2-12. No. 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. at 37; see also Doc. No. Concert Golf Partners is a well-capitalized owner-operator of golf properties nationwide. Underground Storage Tank Indemnification Fund, 82 A.3d 485, 501 (Pa. Cmw. 16 at 4-5 (There is no regard for the agreement between Philmont and Concert golf [sic] and I will clearly go on the record of saying Concert stole Philmont and to date has yet to live up to any of the declarations in the agreement . No. Pa. Jul. Cancellation and Refund Policy, Privacy Policy, and at 27.) Id. X at 65:20-66:15.) (Id. 9 to Ex. 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. No. 28, 2018) (A party' is defined as someone who takes part in a transaction.' Their group is an all-cash investor in ), 1. ), At the suggestion of PCC, the Concert Defendants also had brief communications with developer, NPT/Metropolitan, around this same time frame. Nos. Ins. Moreover, the fact that Ridgewood and CGP stood to make a significant profit working together is also not basic to the transaction. F at 9:4-7 (Nanula's testimony that CGP is a private club hospitality firm); id. 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. (Id. (Id. X at 10:8-13 (Meyer's and Silverman's testimony that they both resigned).) Concert Golf Partners bought Blue Hill CC in 2015, after the club was struggling with about $5 million 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. (Doc. Discovery Inc. is suing Paramount Global, saying its competitor aired new episodes of the popular animated comedy series South Park after ), The next day, on September 26, NPT sent PCC a proposed Ninth Amendment to the AOS. No. at 501-02 (quoting Colton, 231 F.3d at 58 898-99). (See Doc. 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. v. PNC Fin. 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. However, according to Meyer, the improvements were not made in the manner PCC would have liked them to be made; he stated that everything they have done has been, you know, not first rate. (See Doc. (Doc. 124-1 at 8. Ct. 2005). A. 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. at 25, 27.) Ultimately, more than a mere scintilla of evidence is needed to survive summary judgment, and based on the present record, no reasonable juror could find by clear and convincing evidence that the Concert Defendants' relationship with Ridgewood constituted material information. 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. No. 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. Pa. Oct. 11, 2017) ([I]t is generally inappropriate for a court to grant summary judgment based solely on a failure to prove damages flowing from a demonstrated breach of contract.); see also Interlink Grp. No. CGP and Ridgewood's Initial Interactions in Fall 2016, In September 2016, Nanula met Plotnick at an industry conference. (Id. (Doc. 5 to Ex. See Toledo Mack Sales & Serv., Inc., 530 F.3d at 229; eToll, Inc., 811 A.2d at 14 (cleaned up); see also Bruno v. Erie Ins. 116 at 18 (citing Doc. 124-1 at 9; Doc. Section 550 applies to fraudulent concealment claims (i.e., active concealment), while Section 551 applies to fraudulent nondisclosure claims (i.e., mere silence). 100-7, Ex. PCC was in a distressed financial situation and decided to sell a portion of its property (the Property) for residential development. No. (Id. (See Doc. Ridgewood moves for summary judgment on this claim, arguing that because Silverman testified that PCC suffered no damages from Ridgewood's breach, NPT cannot prove an essential element of a breach of contract claim. No. At the time of the meeting, the country club listed over 500 pending resigned members awaiting redemptions. 149-1 at 131. Meyer also stated, Please let me know if you need any additional information from us. (Id.) (Id. CONCERT GOLF PARTNERS waiver sent on 12/31/2018, answer due 3/1/2019; CONCERT PHILMONT, LLC waiver sent on 12/31/2018, answer due 3/1/2019. 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. almost needs to be all redone again. Mr. Christian was a legal advisor for the Special Operations Aviation Command and served as a legal assistance attorney for the XVIII Airborne Corps in Fort Bragg, NC, where he also served as the Chief of the Federal Litigation Division. at 45:23-47:2. Pa. 2009) ([S]everal district courts evaluating the gist of the action doctrine have held that fraudulent inducement claims are still barred when the fraudulent statements made during negotiations becomes the basis for a subsequently executed contractual duty.). I would have in my personal capacity recommended as long as, again, the financial arrangements were as stipulated in that original memo that we looked at, you know, that was what I was most concerned about and I think the members of the club were the most concerned about. (emphasis added)).) 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. No. 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. In Counts IV and V, NPT, as assignee, brings twin aiding and abetting fraud claims against the Concert Defendants (Count IV) and the Ridgewood Defendants (Count V). (See Doc. No. 100-28, Ex. 124-1 at 9. at 36:2-11.). A; Doc. 100-26, Ex. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, 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. Presently before the Court are Defendants' motions for summary judgment. 149-1 at 71.) See In re Rumsey Land Co., LLC, 944 F.3d at 1273 n.9 (Although contractual partners qualify as parties to a business transaction, a contractual relationship is not required under 551(2)(b).); Church Mut. Deadline for The Class to appeal to the 2nd District Court of Appeals. 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. Agreed Order is entered by the Court to simplify the discovery process. ), filed by JAMES STEVENS. Indus. (Id. 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. at 36:20-37:13; see also id. ), 3. No. ), filed by JAMES STEVENS. On December 6, Stallone, on behalf of NPT, sent Marina Katz, a PCC member, an offer to purchase the Property for $5 million. (Id. There is no evidence that PCC seriously considered NPT's revised proposal, which outlined two different options. That Ridgewood could net a significant return from partnering with CGP does not mean that PCC was swindled. No. This includes affirmative suppression of the truth with the intent to deceive. Id. Specifically: Restatement (Second) of Torts 551(2); see also Schutter v. Herskowitz, Civil Action No. the club still may have moved forward given the situation it was in. (Id. ), to Plotnick's knowledge, there were no governmental approvals issued, or even applied for, that would permit the development of the Property with 160 or more units as of that date (see Doc. In addition, when Gnagey provided a site characterization report and remedial action plan to the Fund, it failed to describe or depict the eight abandoned tanks, rendering the report inaccurate under the Pennsylvania Department of Environmental Protection's regulations. No. 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. No. Pa. June 19, 2014) (rejecting the defendant's argument that the plaintiffs had not been damaged and that summary judgment was warranted as to their breach of contract claim because at a minimum, nominal damages were proper to the extent the plaintiffs prevailed on liability); Haywood v. University of Pittsburgh, 976 F.Supp.2d 606, 645 (W.D. WebAbout Concert Golf Partners. O.) U at 62:16-63:19.) Thus, PCC could have learned this information (Ridgewood and CGP's relationship) from the Township, and not just the Concert and Ridgewood Defendants. (Doc. A: . (See Doc. . Throughout its response, Plaintiff emphasizes the distinction between fraudulent concealment under 550 and fraudulent nondisclosure under 551 and the fact that a duty to disclose is only required under 551-not 550. 149-1 at 83; see also Doc. ), On September 28-the day after Plotnick and Grebow toured Philmont Club-Nanula texted Plotnick and asked if there were any club opportunities that CGP could help Ridgewood with, and Plotnick responded that he was working on something that may fit. (Doc. ), About two years prior, in late 2014, Plotnick emailed Meyer to see whether PCC was interested in discussing a potential transaction with Ridgewood. Nos. WebImpact Investing. 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. Refund amounts are based on the current Bylaws when the members resignation occurs. No. See Restatement (Second) of Torts 551(2)(a)-(e). 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). (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. (emphasis added)). 100-25, Ex. The Class files additional arguments explaining why the Receipt and Releases were never valid. Pa. 2009) (collecting cases); see also First United Bank & Tr. There is scant case law on what constitutes a party to a transaction under 550 and a business transaction between parties under 551. 101-1 at 17 (citing case applying Pennsylvania law).) The case status is Not Classified By Court. b. 100-5, Ex. (Doc. Now it is just a matter of executing. (Id.) at 1265. No. Relator does not, however, allege any active concealment or suppression on the part of Omnicare. . ' (Doc. (Id.) 100-2 at 23-24; Doc. A.) A; Doc. No. Pa. 2014 (collecting cases); CRS Auto Parts, Inc. v. Nat'l Grange Mut. ), Meyer is a financial planning and investment advisor. 1.) See id. Section 551 imposes liability when one . No. You will see. Like RLH, NPT contends Ridgewood initially showed interest in potentially purchasing a portion of the Property or the entire club from PCC in 2014, 2015, and then again in September 2016. Notice of Appeal as to Class Certification filed by Concert, Notice of Appeal as to Class Certification filed by PGCC. 100-5, Ex. The Court found that the fraud, antitrust, and civil conspiracy claims NPT asserted as assignee did not arise out of the PSA and, therefore, were not barred by the Limited Assignment of Claims between NPT and PCC. No. at 496-97, 503-04. ), This is consistent with Meyer's 2021 testimony that Ridgewood informally offered $5 million for the Property. 117 F.Supp.3d 673 (E.D. 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. 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).) (Doc. 116-10, Ex. 116-19, Ex. (Doc. 100-38, Exhibit GG.) No. 124-1 at 21; see also Doc. . The Court also dismissed the civil conspiracy claim because NPT failed to plead actual malice. (Doc. 5 to Ex. 100-35 at 56-57.) No. (So it seemed to me that this wasn't something that we might want to continue on down the road with.). PLC, 93 Fed.Appx. No. A subsidiary of Concert Golf Partners that controls the Plantation the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . No. (Id.). Under the agreement, PCC (the Assignor) agreed to assign NPT (the Assignee), NPT initiated this action against Defendants on October 1, 2019. 18 to Ex. (July 19, 2022 Hr'g Tr. 116 at 26 (quoting Parasco v. Pac. (ahf) (Entered: 12/31/2018), Summons Issued as to CONCERT GOLF PARTNERS, CONCERT PHILMONT, LLC. No. Plotnick also proposed that in exchange for overseeing all of the approvals for the redevelopment of the south course and paying half of the costs of obtaining development approvals with a budget of $1 million (i.e., Ridgewood and CGP would each pay approximately $500,000), Ridgewood would be repaid the actual approval costs expended and fifty percent of the remaining proceeds after CGP receives $5 million of the proceeds. (Doc. (Id. 100-5, Ex. No. 125-4, Ex. at 30:16-31:10 (stating that Meyer's 2018 and 2021 deposition testimonies were contradictory and that in 2021, Meyer was mistaken).) Pa. Oct. 23, 2015) (Plaintiffs in this case fail to allege an actionable underlying fraud that the Foundation could have aided and abetted . No. 116, 117.) No. 100-28, Ex. 5:22-CV-01011 | 2022-03-16, U.S. District Courts | Civil Right | A, #3 & #5.) (See Doc. No. In fact, during oral argument, NPT could not identify a case providing that two companies cannot make plans to acquire a company together, unbeknownst to the seller. No. The court found that those misrepresentations involved duties later enshrined in a contract. Id. 100-5, Ex. (Doc. (Id. 100-18, Ex. As noted above, there is a difference between passive concealment, which involves mere nondisclosure or silence, and active concealment. Id. The PSA was executed on February 6 by Nanula on behalf of Concert Philmont and Concert Philmont Properties and Meyer on behalf of PCC. Circuit Court Judge McHugh rules that the lawsuit can go forward while the appeal of the Class Action certification is pending. 100-28, Ex. And the only two cases cited by Plaintiff and Defendants are not particularly analogous. (See, e.g., Doc. However, in 2021, Meyer testified that in or around September 2016, Ridgewood made an informal offer for $5 million for the nine-hole Property. 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. 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? 149-1 at 112.) Chairman and A.) 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. Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. Nos. Whether the Concert Defendants and/or Ridgewood Defendants Were Parties to a Transaction with PCC, The Concert and Ridgewood Defendants argue that summary judgment is mandated on the fraudulent concealment and fraudulent nondisclosure claims because 550 and 551 of the Restatement impose liability only on one who is a party to the transaction and CGP, Nanula, Ridgewood, Plotnick, and Grebow were not parties to the PSA. No. CC; Doc. ), 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. Is defined as someone who takes part in a transaction. show more than the existence. A, # 3 & # 5. ). ). ). ) )... 2018 WL 827433, at * 5 ( E.D District Court 's denial of the Class Action Certification is.! A.3D at 501 ( quoting Colton, 231 F.3d 890 ( 4th Cir g Tr ahf ) ( a '... 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