Donner v. Nicklaus

197 F. Supp. 3d 1314, 2016 U.S. Dist. LEXIS 93776, 2016 WL 3919454
CourtDistrict Court, D. Utah
DecidedJuly 15, 2016
DocketCase No. 2:11-cv-489
StatusPublished
Cited by3 cases

This text of 197 F. Supp. 3d 1314 (Donner v. Nicklaus) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donner v. Nicklaus, 197 F. Supp. 3d 1314, 2016 U.S. Dist. LEXIS 93776, 2016 WL 3919454 (D. Utah 2016).

Opinion

MEMORANDUM DECISION AND ORDER

Clark Waddoups, United States District Judge

Before the court is Defendants’ Motion for Summary Judgment (Dkt. No. 125) on [1317]*1317plaintiffs intentional misrepresentation claim, which the Tenth Circuit remanded in Donner v. Nicklaus, 778 F.3d 857 (10th Cir.2015), after this court dismissed it on defendant’s second motion to dismiss. Also before the court is plaintiffs Motion to Strike Errata Sheet from the Deposition of Paul Stringer (Dkt. No. 136). The court has carefully considered the parties’ motions, memoranda and supporting documentation, as well as the relevant law and the oral arguments of counsel. For the reasons stated below, the court GRANTS defendants summary judgment on statute of limitations grounds. As a result, plaintiffs’ motion to strike the deposition errata sheet is MOOT.

FACTUAL BACKGROUND

On December 31, 2007, plaintiffs Jeffrey Donner, a Colorado surgeon, and his wife, Judee Donner, entered into a purchase agreement contract with Mount Holly Club, LLC to invest $1.5 million in Mount Holly Club, a planned private luxury resort to include a ski area and golf club to be designed by golfer Jack Nicklaus in the mountains above Beaver, Utah. Jack Nicklaus’ anticipated role in the development of the golf course and his agreement to license his brand to market and advertise the club and resort is detailed in the background of the Tenth Circuit opinion and will not be repeated here. Neither Mr. Nicklaus nor Jack Nicklaus Golf Club, LLC was a party to the investment contract that forms the basis of the Donners’ loss, and at no time prior to their investment did the Donners meet Mr. Nicklaus, nor did Mr. Nicklaus participate in any negotiations regarding the Donners’ investments. See Dr. Donner Depo. in Donner v. Bell, 29:18-22. Mr. Nicklaus and Jack Nicklaus Golf Club, LLC’s involvement prior to the Donners’ investment was limited to joint marketing materials and press releases. First Am. Compl., ¶ 78, 90).

The Donners’ investment was preceded by a personal visit to the site of the planned Mount Holly Club in December 2007, where they met with Marc Jenson and his brother Steve Jenson, allegedly the principals of Mount Holly Club, LLC, which was the legal entity responsible for developing the property. (Dkt. No. 1, ¶¶ 18-19, 68). The Donners allege that the Jensons told them that their $1.5 million investment would include an estate lot in the Mount Holly project, rights to use the private ski resort, and a transferable membership in the Jack Nicklaus Golf Club, which “Marc Jenson asserted would allow all JNGC members to golf at all the other twenty-five Nicklaus private clubs around the world and to use on-site luxury Jack Nicklaus Golf Club houses.” Aff. of Dr. Donner at 2-4 (Depo. Ex. 23 at AG950-52); Judee Donner Depo. at 7:6-21. The Mount Holly Club charter membership purchase agreement and associated documents signed by the Donners on December 31, 2007, further outlined these details. The actual documents that were reviewed, signed, and received by the Donners, however, clarified that the investment provided them not with an actual estate lot, but a certificate that could be exchanged for one; and that the dates for completing the Mount Holly Club facilities that the Don-ners would eventually have a right to use were estimates dependent on obtaining the necessary permits and approvals. Dr. Donner Depo. at 171:7-172:2; 173:22-174:21; Judee Donner Depo. at 110:25-111:8.

The Donners both testified that it was very important to their investment that the Jensons represented that the project had “no debt” and was risk-free. Dr. Don[1318]*1318ner Depo. at 361:2-362:25; Judee Donner Depo. at 169:1-9; 170:10-20; 183:19-184:18. Although he “primarily” relied on the Jen-sons’ representations as the basis of his investment, Dr. Donner was also allegedly influenced by Jack Nieklaus’ partnership with and/or endorsement of the Mount Holly Club and its management, and investments by other alleged investors including Mr. Nieklaus. Dr. Donner Depo. in Donner v. Bell at 28:25-29:25.

Around January 11, 2008, less than two weeks after plaintiffs signed their purchase agreement for membership in the Mount Holly Club, they admit that they got their first “hint that this was a fraudulent project.” Dr. Donner Depo. in Donner v. Bell at 33:20-34:22. Plaintiffs learned that Marc Jenson had a “very checkered criminal past” that caused them to be concerned that there was a problem with their investment. Dr. Donner Depo. at 277:7-21; Judee Donner Depo. at 36:10-37:13. After being informed by a friend that she should investigate Marc Jenson’s “sordid criminal past” online, Judee Donner did her own search and found “his history of multiple criminal actions,” including “many counts ... jail time for taxation ... defrauded individuals in different projects that he was involved in ... appeared that there was securities fraud ... there was so many, it was just mind boggling.” Judee Donner Depo. at 37:2-17. She immediately informed her husband about Marc Jen-son’s “terrible criminal past” and felt shocked by the threat this criminal history posed to their $1.5 million investment because “we relied on them and all the representation from Jack Nieklaus that this was, you know, this legitimate project.” Id. at 38:10-39:1.

Shocked himself, Dr. Donner performed his own search and saw “bankruptcies, civil cases, and the current pending criminal case” against Marc Jenson. Dr. Donner Depo. at 278:13-279:23. After being “bushwhacked with the information that Mr. Jenson was a known criminal and had pending felony charges,” Dr. Donner became “suspicious about what was going on” with his investment. Dr. Donner Trial Testimony in Criminal Case State v. Marc and Stephen Jenson at 101:1-4. Ju-dee Donner was also “very concerned as of that point in time” for plaintiffs’ $1.5 million investment in Mount Holly Club. Ju-dee Donner Depo. at 39:2-5.

After learning about Marc Jenson’s criminal history, plaintiffs agreed that Dr. Donner would “investigate and get to the bottom” of their investment concerns. Id. at 39:6-8. He began communicating with Timothy Bell, the individual who introduced them to the Mount Holly Club investment opportunity and to the Jensons.1 Dr. Donner Depo. at 280:4-285:2. Dr. Donner asked Tim Bell whether Mr. Nieklaus or his organization were aware of Marc Jenson’s criminal history. Dr. Donner Decl. at ¶ 11. On January 15, 2008, Dr. Donner received an e-mail from Mr. Bell forwarding an e-mail from Steve Jenson, which stated:

Tim,
These are the first of several documents I will be sending you. I spoke with the Nieklaus Group about an hour ago and they are preparing a letter that you can use as well. As I mentioned to you, Jack Nieklaus and his officers have been fully aware of this situation since it happened and have no issues at all. I have worked closely with their executive staff and their legal counsel and once they un[1319]*1319derstood exactly what this is and is not they had no problem at all. As I discussed with you earlier Marc is not an owner or officer or signatory on Mt. Holly Club, and never has been ... The entire ownership group is also aware of the current legal situation that Marc is working on. Marc’s responsibilities at Mt.

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Cite This Page — Counsel Stack

Bluebook (online)
197 F. Supp. 3d 1314, 2016 U.S. Dist. LEXIS 93776, 2016 WL 3919454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donner-v-nicklaus-utd-2016.