100-15, Ex. Board members and staff made the decision to change the bylaws, knowing it would harm the resigned members. (See Doc. if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question. Restatement (Second) of Torts 551; see also Gnagey Gas & Oil Co., Inc. v. Pa. Nanula reasoned that CGP would get a little more of the total proceeds because (1) we have to deal with member pressures and capex vagaries 3-5 years down the road, and (2) we upfronted the capital to buy all 300+ acres of land so that Ridgewood does not have to do this. (Id.) (Doc. No. 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. Nanula estimated that the member vote will be 90%+ in favor. (Id.) 100-28, Ex. 20 to Ex. ), Cicero agreed that the return Ridgewood would receive under the proposal seems awfully high instead of just some set fee that is relatively nominal. (Id.) at 23. 100-35, Ex. No. (See Doc. ), 1. A grant of summary judgment on the sole basis of absence of provable damages, therefore, is generally improper. No. W at 36:20-37:13.). 20-6127, 2021 WL 6106423, at *1, *5 (E.D. Plotnick also requested that Meyer share with him information about the Property and Philmont Club's financials. He wanted to explore how we could give the club 100% of all our real estate proceeds . (Id. 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. 100-21, Ex. The Third Circuit noted that while Pennsylvania courts have adopted the duty to speak requirement, the cases leave us uncertain of the extent to which Pennsylvania law includes the Restatement's discrete criteria for when a duty to speak arises and then interpreted two Pennsylvania cases, one in which latent problems were not discoverable by other reasonable means and one in which one party was the only reasonable source of the information. Id. NPT, individually and as PCC's assignee, asserted claims for fraud, breach of contract, conspiracy, and violations of federal antitrust law. v. PNC Fin. 59.). No. 7 at 426:12-15.) 3:21-CV-00816 | 2021-04-08, U.S. District Courts | Other | (Doc. MM at 187:23-188:1.) 100-5, Ex. (See Doc. (Id. . No. The Court dismissed the fraud in the omission and fraudulent concealment claims, determining that Defendants did not owe PCC, which was a sophisticated entity engaged in an arms-length business transaction, a duty to speak. And when asked specific questions related to the tanks, Gnagey failed to provide pertinent information. 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.) at 2-3 (The primary motivation behind my resignation has been Concert Golf's refusal to respond to my repeated requests (i) to confirm in writing . No. No. NPT relies on the evidence of disgruntled members to support its contention that Ridgewood and CGP's relationship was material. (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). 100-5, Ex. 149-1 at 204. Judge issues Order denying the rehearing requested by The Class. ; see also Doc. 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. A.) ), In a February 16, 2017 email from Nanula to Moran, Nanula described the waterfall/CGP's agreement with Ridgewood as follows: (1) Repay $1m entitle[ment] costs to each, 60-40; (2) Next $7m to CGP for land.' The Class files its Motion for Rehearing of Summary Judgment filed. In Pennsylvania, the elements of fraud must be proven by clear and convincing evidence. See Gnagey Gas & Oil Co., Inc., 82 A.3d at 493, 500 n.4 (noting that the presiding officer found that the Fund presented clear and convincing evidence that Gnagey perpetrated a fraud in concealing the existence of the abandoned tanks and/or misrepresenting the number of tanks at the site and ultimately affirming the presiding officer's holding that the hiding of the tanks constituted fraud); see also SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205, 212 (3d Cir. 28, 2022). Equal Employment Opportunity Act (EEOA) - 42 USC 2000e 100-5, Ex. 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. ), Nanula had previously spoken to Glenn Meyer about a potential deal in 2014. No. (Doc. Nonetheless, even finding that Concert Defendants actively concealed their relationship, there is no evidence that this relationship was material information that deceived PCC into entering into the PSA. [I]f I knew that was his intention I would say I wouldn't - that wouldn't have sat well with me, nor the members of the club.).). 149-1 at 161, 42.) (Doc. . No. 116-4, Ex. Defendants moved to dismiss the Complaint (see Doc. So getting them to back off to a small fee will be difficult. (Id. As noted above, the 551 claim against the Ridgewood Defendants cannot stand because they were not parties to a business transaction. Nanula assured Meyer that CGP would find the right people to get this land transaction done. (Id.) A [Marty Stallone, Executive Vice President of Metropolitan]: I would say on any given day any member of Metropolitan Development Group would give their advice or opinions on any of our projects.).) at 501-02 (quoting Colton, 231 F.3d at 58 898-99). (Doc. We are a boutique owner-operator of upscale private golf & country clubs nationwide. 149-1 at 71.) 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. This field is for validation purposes and should be left unchanged. ), 3. 13), and the Court granted the motion in part and denied the motion in part (Doc. The Motion by Concert Plantation and PGCC is DENIED. In the Notice, NPT explained that it was notified that any rezoning would require that the property be age restricted and require that the community include a clubhouse and a pool and that it had determined these mandated changes to the scope of the project constituted a material change under the terms of the LPA. 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. No. . Concert Golf Partners bought Blue Hill CC in 2015, after the club was struggling with about $5 million Concert Golf Partners will not require residents to be club members. No. 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). No. No. The initial burden of demonstrating that there are no genuine issues of material fact falls on the moving party. But it did not. (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 . 100-5, Ex. 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. (See, e.g., Doc. He alleges only the failure to disclose. (quoting Colton, 231 F.3d at 898)). was basic to the transaction. (See Doc. ; see also Doc. 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. 124-1 at 11.) That this deception was undiscoverable, regardless of [PCC's] efforts, yields a duty to disclose.).) Nanula stated that CGP would only pursue the real estate angle with Ridgewood and that he was prepared to sign an agreement to that effect. (Id.) 149-1 at 60.) 173)-notwithstanding the fact that he had told Ridgewood that he was ready to paper [their] deal the week prior (Doc. the capital investments being implemented with regard to the two required capital phases under our Agreement of Sale . Under the DSA, Ridgewood Philmont is paid a management fee for providing development services. 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.). 1. 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). 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. (Doc. (Doc. (See Doc. 100-5, Ex. At first, PCC agreed to sell the Property to Toll Brothers, but Toll Brothers terminated that agreement in July 2014. No. 100-25, Ex. (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. . UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. A. No. Final Judgment entered in favor of PGCC and Concert Plantation. at 65-67.) They are not putting up any real capital at all here, and asked Cicero for his thoughts. (So it seemed to me that this wasn't something that we might want to continue on down the road with.). See Restatement (Second) of Torts 551(2)(a)-(e). at 60-64.) 100-5, Ex. 2018) (rejecting the plaintiff's argument that the need for chloride-free insulation to reduce the risk of corrosion was basic to the plaintiff's agreement to purchase crystallizer tanks from the defendant and finding that although the facts were important, they were not necessarily basic). To that end, the crux of the original fraud claim pertained to Ridgewood and CGP's alleged misrepresentations as to the riskiness of developing the Property, not capital expenditures. If the suit cannot be resolved through mediation, the plaintiffs want a jury trial. A: Potentially . W at 111:3-9, 111:15-18.) 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. However,board members changed the redemption formula in the bylaws against attorney advice. A.) No. 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. 16 to Ex. The Court also dismissed the civil conspiracy claim because NPT failed to plead actual malice. 149-1 at 11, 52; Doc. 100-5, Ex. 124-1 at 8. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, 117 F.Supp.3d 673 (E.D. mctlaw Fights to Help You Receive the Amount You Deserve. . ; see also id. 384, 387 (3d Cir. In a later email, he also attached a much more likely-and more detailed-list of our initial capital projects at Philmont CC, which were [n]ot to be shared with [opposing counsel] or Seller. (Id. No. Thus, the Court grants the Ridgewood Defendants' motion for summary judgment as to the 550 claim. (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.).) 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. (Doc. No. 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. 100-5, Ex. Second-and most importantly-the Court only determined that the fraud claim as alleged in the initial Complaint sounded in tort. No. (Doc. Nanula responded, Yes, but this firm is in advanced talks with club president about buying this 35 acre parcel from the club . 2022) (holding that the evidence produced by [the plaintiff] would allow a reasonable jury the option of concluding by clear and convincing evidence that Drexel misrepresented or concealed its own projections for student enrollment). (Doc. Q: If you had known that Concert and Ridgewood were anticipating millions in extra profit from the deal, would you have thought differently about the deal that Concert was offering to Philmont Country Club? No. No. In a November 1, 2021 ruling, Judge Andrea McHugh, a Florida circuit court judge, granted class-action status to the suit by former members against the club and Concert Plantation, LLC. 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. . 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. 100, 101.) A (Given these benefits and the operational and management obstacles we continue to experience, the Board of Directors is pursuing a transaction with [CGP]); Id. 100-6, Ex. 100-5, Ex. 59 at 26-27 (Count I).) . 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). 14 to Ex. Silverman testified that there was such minimal communication with Ridgewood and that he never spoke with anyone from Ridgewood. 101-2 at 14). Section 550 applies to fraudulent concealment claims (i.e., active concealment), while Section 551 applies to fraudulent nondisclosure claims (i.e., mere silence). 100-28, Ex. 100-5, Ex. at 36.). No. 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. (See Doc. at 40:16-42:21 (Q: So given that, given your goal of maximizing return, if two potential bidders are - if they are talking with one another about their offers, would you agree that by doing that they are interfering with your goal to maximize the return for the members? 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). 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 . 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. In addition, Plotnick requested that Ridgewood receive a $10,000 monthly management fee (split according to the 60/40 investment) that would be capped at 24 months; the management fee would be a cost to both parties, and reimbursed with the costs in the first step of the waterfall. (Id. The following week, on October 10, Plotnick emailed the same documents to Matthew Glavin at Morningstar Golf & Hospitality, LLC. (The Board unanimously believes that this is our best option towards securing Philmont's success in the years ahead. A: . (See, e.g., Doc. . 116 at 29.) Refund amounts are based on the current Bylaws when the members resignation occurs. . In examining the motion, we must draw all reasonable inferences in the nonmovant's favor. ), 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. (KARPF, ARI) (Entered: 12/31/2018). No. The Court is not persuaded. Under the proposed Seventh Amendment, the minimum purchase price would be revised to $12,049,382.40-i.e., $75,308.64 multiplied by 160. Philmont Club's facilities also included a tennis court, swimming pool, and clubhouse. at 88) and that Concert Philmont was not incorporated until January 23, 2017 (id. No. (Doc. 149-1 at 63; Doc. Nanula forwarded the materials from Silverman to CGP's consultant, Thomas Moran, to prepare a pro forma analysis. 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. . A; Doc. No. (only citing SOF, 202, which in turn cites to an internal Concert email (Doc. No. ), Silverman and Meyer testified that they were not aware of any damages the Club suffered by virtue of Ridgewood sharing the information with ClubCorp or Morningstar. Now it is just a matter of executing. (Id.) ), Restatement (Second) of Torts 551, cmt. This is not a fact basic to the transaction.). By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, No. at 118:3-9. No. (See, e.g., Doc. (Id. Public Records Policy. 149-1 at 38; see also Doc. Please Update this case to get latest docket information. (Doc. A subsidiary of Concert Golf Partners that controls the Plantation . . No. Imposition of liability for fraudulent concealment is commonly applied in two types of situations, although it is not limited to them. Restatement (Second) of Torts 550, cmt. (Id. 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.) 149-1 at 56; Doc. No. 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. 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. 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. (Id. 2:22-CV-00328 | 2022-01-26, U.S. District Courts | Civil Right | 149-1 at 33.) Two days later, on November 4, Plotnick responded, I completely understand what you are trying to do and I think your proposal is pretty close; he believed they had the basis for a deal, with just a few minor tweaks. So, the country club chose profit over people. Silverman also testified that Nanula wasn't being very honest with us and stated he does not like doing deals with people that aren't honest. (Id. 100-5, Ex. Grp., Inc., 667 F.Supp.2d 443, 450 (M.D. [A]: I'm not sure whether there is a case that talks about two companies cannot do that.).). (See, e.g., Doc. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from those facts are matters left to the jury. PCC did not suggest any capital improvements be made different from those described in the November 1 proposal. 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. 14 to Ex. According to Meyer, Brown Golf Management both own[ed] clubs and served[d] as a management company for clubs across the country, and PCC had roughly a two-year relationship with them. (Doc. 100-29, Ex. No. Meyer testified that it would have been disconcerting to hear that Nanula had been speaking with another potential buyer about not approaching Philmont. Nanula wrote, If so, great - we will move ahead on our club deal, and start working with you on the real estate deal. (Id.) Headquarters Regions East Coast, Southern US. 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. On October 3, 2016, Meyer informed Nanula that the AOS had been terminated and that PCC was considering its options for moving forward. 3 to Ex. 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? W at 119:20-120:6; see also id. [I]f you knew that Mr. Nanula was promising to spend $5 million to you, 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? 100-5, Ex. 173.) 5:23-CV-00394 | 2023-01-31, U.S. District Courts | Civil Right | (Doc. Internal Concert email ( Doc the Court grants the Ridgewood Defendants can not stand because were... Would harm the resigned members Property and Philmont club 's facilities also included a tennis Court, swimming,! Sounded in tort Civil conspiracy claim because npt failed to provide pertinent information Ridgewood Defendants ' for! 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