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 No. Refund amounts are based on the current Bylaws when the members resignation occurs. at 26. No. M; accord id. 2:18-CV-05122 | 2018-11-28, U.S. District Courts | Civil Right | 100-28, Ex. MM at 187:23-188:1.) 2 Forwarded To: Counsel on 12/31/2018 (ahf) (Entered: 12/31/2018), Docket(#1) COMPLAINT against CONCERT GOLF PARTNERS, CONCERT PHILMONT, LLC ( Filing fee $ 400 receipt number 0313-13254330. (Doc. Sections 5.5(h) and 5.5(k) of the PSA provide (1) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the [Initial Capital Projects] currently estimated by the Parties to cost approximately FOUR MILLION AND NO/100 DOLLARS and (2) Concert Philmont LLC will cause to be completed, and pay the costs of completion of, the Phase II Capital Projects currently estimated by the parties to cost approximately FIVE MILLION AND NO/00 DOLLARS. (Doc. . ), Plotnick also suggested that $5 million from the sale of the Property be reinvested in Philmont Club as capital expenditures. AUGUSTA, Ga. (WJBF) The agreement to hold concerts at Lake Olmstead Stadium has hit a sour note. The Class files their Motion for Partial Summary Judgment to have the Court decide their claim for breach of contract and other issues. 14 to Ex. No. P.) The following day, on December 1, Stallone sent Nanula the draft of the text amendment he presented to Lower Moreland Township's Board of Supervisors at its September meeting related to zoning. A.) Concert Golf Partners is a well-capitalized owner-operator of golf properties nationwide. [I]f one offer were acceptable to us, uhm, irrespective of the fact that another offer may have been available, you know, the - the club still may have moved forward on that given the situation were in. (If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract . ), CGP. ), Ridgewood and CGP continued to keep in touch as things moved ahead with CGP and PCC. 53 at 26-29 (discussing gist of the action doctrine) with id. 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. ), On December 20, NPT sent Meyer a revised proposal to buy the Property. (Doc. Pennsylvania has adopted the Restatement (Second) of Torts 550, which imposes liability for intentional concealment of material information regardless of a duty to disclose.). Why is this public record being published online? (See Doc. (Doc. Therefore, the Concert Defendants' motion for summary judgment is denied as to this argument. No. (See Doc. ), NPT. A (We have to assume no real estate transaction might ever be possible, due to the environmental remediation vagaries and cost; the extensive infrastructure costs for the Philmont Ave. intersection project; and the Town approval uncertainties.).) 21 to Ex. (Id.). 59.) A: Again, I - I don't - that I can't answer. See id. No. 124-1 at 21; see also Doc. (Id.) A.) D at 27:21-29:16.) 100-26, Ex. . 100-5, Ex. Notably, Defendants fail to cite to any applicable case law to support their position. (emphasis added)).) 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).) Pa. Apr. 100-5, Ex. Approximately two-and-a-half years later, on September 18, 2019, as part of the settlement, NPT and PCC entered into a Limited Assignment of Claims Agreement. at 13:1-3; id. 464, 476 (10th Cir. (See Doc. Litig., 90 F.3d at 714 (in the context of securities litigation, discussing whether the alleged misrepresentations or omissions are so obviously unimportant to an investor); Parasco, 920 F.Supp. 59 at 36.) A: Potentially . ), The Property consisted of nine of eighteen holes of the South Course and spanned approximately 50 to 60 acres. No. at 45:23-47:2. (Id.) (Id.) 20 to Ex. ), At the suggestion of PCC, the Concert Defendants also had brief communications with developer, NPT/Metropolitan, around this same time frame. Defendants file a Motion for Summary Judgment requesting that the Court decide the entire case based on the evidence without the need for trial. 100-2 at 8-22.) ), After receiving Ridgewood's proposal, Nanula forwarded the email to Nick Cicero, a partner at Freestone Capital Management. (Id.) Anderson, 477 U.S. at 252. No. No. 101-1 at 11.) Nanula responded, Yes, but this firm is in advanced talks with club president about buying this 35 acre parcel from the club . (See Doc. A; Doc. 2 to Ex. Id. Agreed Order is entered by the Court to simplify the discovery process. ), On September 16, NVR told Glenn Meyer, then-President of PCC, and PCC's counsel that NPT indicated to NVR its desire to exit the transaction and NVR will be stepping back into the shoes of the Purchaser. (Doc. Last Funding Type Private Equity. No. is the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract); id. (Id. ), Silverman is a Certified Public Accountant and a business advisor. 1.) 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. 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. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. ), On September 23, 2016, Plotnick emailed Meyer to discuss a potential relationship at Philmont. (Doc. But neither this assertion-nor the single citation to the record that follows-evidence active concealment of material information. (See Doc. 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). 100-18, Ex. No. 3:14-cv-02404, 2017 WL 4540613, at *8 (M.D. Units and lots are referred to interchangeably. 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. ), Following Plotnick and Meyer's October 10 phone call, Nanula had a 42-minute conversation with Plotnick. Silverman testified that there was such minimal communication with Ridgewood and that he never spoke with anyone from Ridgewood. No. No. (Doc. On July 22, 2015, NPT and NVR entered into a Lot Purchase Agreement (LPA), which provided that NPT would sell the individual lots to NVR. 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. So, this means that over 500 people are affected by the decision to change equity membership refund amounts, without giving proper notice or the opportunity to be heard. Concert Plantation and PGCC file a Motion to freeze the lawsuit until the Appeals Court rules on Class Action Certification. (Doc. No. The gist of the action' doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims [by] precluding plaintiffs from recasting ordinary breach of contract claims into tort claims. No. at 36.). 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. 149-1 at 136-37. 100-5, Ex. No. No. Legal Name Concert Golf Partners, LLC. 2:22-CV-00328 | 2022-01-26, U.S. District Courts | Civil Right | 100-5, Ex. (Doc. No. 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.) (Id.) Nanula elaborated, In a normal deal where we are both fronting the land cost, I would still presume a straight-up 50-50 deal, but here the fact pattern and risks are different. (Id.). Thus a seller who knows that his cattle are infected with tick fever or contagious abortion is not free to unload them on the buyer and take his money, when he knows that the buyer is unaware of the fact, could not easily discover it, would not dream of entering into the bargain if he knew and is relying upon the seller's good faith and common honesty to disclose any such fact if it is true. (emphasis added)). It is clear that NPT believes it has been wronged. 149-1 at 14.) 5 to Ex. at 188:2-12. No. Nanula also stated that he would work on a preliminary proposal to share [that] week. (Id.) A; Doc. K.) NPT reiterated its position that as a result of [the] material changes, [it] could not proceed absent an Amendment to the AOS and a corresponding Amendment to the LPA. (Id.) There is scant case law on what constitutes a party to a transaction under 550 and a business transaction between parties under 551. A.) . 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. 100-29, Ex. 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. Not interested.).) The Tenth Circuit affirmed summary judgment for RLH on the 551 claim, holding that RLH was not a party to a business transaction under 551. 2020-03-13, U.S. District Courts | Other | at 99.) 1995) to support its duty to speak test. For the reasons that follow, the Court grants in part and denies in part the motions. I cant recommend this firm enough. 173)-notwithstanding the fact that he had told Ridgewood that he was ready to paper [their] deal the week prior (Doc. 125-5, Ex. j (emphases added); see also Schutter, 2008 WL 2502132, at *6; Youndt, 868 A.2d at 551. at 25, 27.) 53 at 26-30; see also id. No. Uhm, the bunkering that they've done . Rumsey Land Company (Rumsey) owned a property, and when Rumsey filed for bankruptcy, Resource Land Holdings, LLC (RLH) offered to purchase the property. Nice guy . 116 at 26.) at 97. Even more, this change came with no consent from resigned members waiting for their redemption. 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. Metropolitan Development Group (Metropolitan) is a land development business (see id. Grp., Inc., 667 F.Supp.2d 443, 450 (M.D. A: . Under either New Jersey or Pennsylvania law, actual damages need not be established to survive summary judgment on a contract claim. ), 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. 116-5, Ex. The Motion by Concert Plantation and PGCC to continue/delay the trial is DENIED. For many members, the refund amount was 80% of the equity membership fee in effect on the effective date of resignation. (See Doc. 116-10, Ex. This purchase matches the dollar amount that is subject to contingencies in the proposal on the table from Center [sic] Golf. Pa. June 23, 2008); Youndt v. First Nat'l Bank of Port Allegany, 868 A.2d 539, 550 (Pa. Super. When I say they went to bat for methis Law Firm literally did just that. (See Doc. 2.) 1 at 226-41. (See Doc. For example, on November 19, two days after PCC's Executive Committee voted to accept CGP's proposal, Nanula told Plotnick that the Board want[s] to move fast and get this closed asap. (Id.) A.) 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. He said they were working on a deal with a RE developer, and could not do anything else right now. Pa. 1996) and In re Westinghouse Sec. BB.) (Doc. Id. 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. At the conference, Plotnick expressed interest to Brown about a potential transaction between PCC and Ridgewood. at 682-83. The key difference between the two is that a defendant can only be held liable for fraudulent nondisclosure under 551 if a duty to disclose exists, while a defendant can be held liable for active concealment under 500 even if a duty to disclose does not exist. No. Circuit Court Judge McHugh rules that the lawsuit can go forward while the appeal of the Class Action certification is pending. And, the Court is even less persuaded by NPT's contention that Meyer's testimony that the Defendants' relationship was disconcerting shows that relationship went to the essence of the transaction. But see id. No. No. No. 20 to Ex. 100-8, Ex. Stallone testified that during a phone call with Nanula, he and Tulio believed that Nanula was fishing and ended the conversation. NPT must set forth more than a mere scintilla of evidence to survive summary judgment, and it has not. See Restatement (Second) of Torts 551(2)(a)-(e). (Id. The hearing and the trial will move ahead as scheduled. 149-1 at 158; Doc. Such is the case here. Viewing the facts in the light most favorable to NPT, the Court cannot find that there is no material dispute of fact as to whether Nanula and CGP are parties to the transaction for the purposes of 550 and 551. at 88) and that Concert Philmont was not incorporated until January 23, 2017 (id. In so arguing, NPT misconstrues the Court's prior ruling at the motion to dismiss stage. NPT, individually and as PCC's assignee, asserted claims for fraud, breach of contract, conspiracy, and violations of federal antitrust law. Trade & Fin. Really like that we are planning on utilizing 1 clubhouse and not 2. (emphasis added)).) 124-1 at 46.) (Id.) Make your practice more effective and efficient with Casetexts legal research suite. 100-18, Ex. Contrary to NPT's assertion, this does not show that Ridgewood's and CGP's secret agreement . 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. Pa. 2004) (finding no duty to speak to the public at large). 100-16, Ex. No. No. Filing 1 COMPLAINT against CONCERT GOLF PARTNERS, LLC, CONCERT PHILMONT PROPERTIES, LLC, CONCERT PHILMONT, LLC, JONATHAN at *3-4 (finding that the defendant-insurance adjuster was a party to the transaction for purposes of 551 despite the fact that the adjuster was not named in the insurance policy or any other contract). 149-1 at 71.) ), 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. (Id.) ), On December 12, Nanula met with PCC's membership and gave a presentation on CGP's proposal to acquire the Club. ), On January 19, 2017, PCC's Executive Board voted to approve the Purchase and Sale Agreement (PSA). Chairman and Discovery Inc. is suing Paramount Global, saying its competitor aired new episodes of the popular animated comedy series South Park after No. Nos. Absent a viable claim of fraud, the Foundation could not have aided and abetted any tort.). The Concert Defendants argue that the fraud claim should be dismissed because it is barred by the statute of limitations, the gist of the action doctrine, and the economic loss doctrine, among other reasons. No. NPT opposes the motions. No. NN at 262:10-21.) Finally, one place to get all the court documents we need. ), The next day, on September 26, NPT sent PCC a proposed Ninth Amendment to the AOS. No. No. U at 58:20-59:11. 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. 16 (October 19, 2018 resignation email from Mitch Russell, stating, 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 . PLC, 93 Fed.Appx. Once the moving party has met its burden, the nonmoving party must counter with specific facts showing that there is a genuine issue for trial. Matsushita Elec. . We disagree. 384, 387 (3d Cir. The Initial Capital Projects were to be completed within two years of the closing date (i.e., before March 2019). . As noted above, there is a difference between passive concealment, which involves mere nondisclosure or silence, and active concealment. Id. ' (citing Bucci, 591 F.Supp.2d at 783) (emphasis added).) (Id. And the only two cases cited by Plaintiff and Defendants are not particularly analogous. No. But that information related to the amount of money CGP intended to spend on capital expenditures, not Ridgewood and CGP's relationship. 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. Mail Class Action Notices mailed to class members/former PGCC equity members. No. 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. at 91:2-8. The due diligence period was extended until September 29, 2016 through a series of eight amendments to the AOS. A). 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.) 100-28, Ex. Fraudulent Concealment and Fraudulent Nondisclosure Claims, In Counts II and III, NPT, as PCC's assignee, asserts fraudulent concealment and fraudulent nondisclosure claims against all Defendants under Restatement (Second) of Torts 550 and 551, alleging that the Concert and Ridgewood Defendants failed to disclose that they were working together and actively concealed their relationship. W, 36:20-37:9, 54:10-54:22).) Servs. No. 17-1694, 2018 WL 827433, at *5 (E.D. On March 3, 2017, NPT initiated a lawsuit against CGP and PCC in the Montgomery County Pennsylvania Court of Common Pleas (Case No. 100-28, Ex. On December 6, Stallone, on behalf of NPT, sent Marina Katz, a PCC member, an offer to purchase the Property for $5 million. 12 to Ex. (Compare Id. No. Restatement (Second) Torts 551(1) (One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.). (Doc. PCC did not suggest any capital improvements be made different from those described in the November 1 proposal. 173.) (Doc. . No. 100-5, Ex. 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. In their motions for summary judgment, Defendants argue that the 550 and 551 claims should be dismissed because the Concert and Ridgewood Defendants were not parties to a transaction with PCC; Defendants did not owe PCC a duty to speak and therefore a fraudulent nondisclosure claim cannot lie under 551; and NPT has failed to produce evidence showing active concealment under 550. (See Doc. In addition, the Gaines court did not hold that the plaintiffs in that case were parties to a transaction or involved in a business transactional relationship. No. That this deception was undiscoverable, regardless of [PCC's] efforts, yields a duty to disclose.).) Federal courts applying Pennsylvania law have agreed with the impropriety of summary judgment in such a situation. The proposed Seventh Amendment was not executed. 100, 101.) No. A subsidiary of Concert Golf Partners that controls the Plantation Concert Golf Partners is a boutique operator of private golf and country clubs headquartered in Lake Mary, FL. 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.). ), M. The Limited Assignment Agreement Between PCC and NPT, On March 3, 2017, NPT initiated a lawsuit against CGP and PCC in the Montgomery County Pennsylvania Court of Common Pleas (Case No. 149-1 at 131. Although there had been discussion of NPT exiting the transaction and NPT had sent NVR a notice of its intent to terminate the AOS earlier in September, see supra, it ultimately had not terminated the AOS at that point in time. To $ 12,049,382.40-i.e., $ 75,308.64 multiplied by 160 their redemption NPT 's assertion, this does show. 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