this is an appeal of a summary judgment decision in which respectfully district court miss the essence of katz's claims the pivotal question which was never addressed by the district court is whether bu for the misrepresentations and omissions miss katz would have held onto her forty eight percent economic interest in falls view rather than selling instead of looking at that pivotal question whether she would have retained her interests rather than selling were concerned this court should reverse the district court in remand for a trial where this pivotal issue was resolved by a finder of fact because the record when viewed in late most  or did not reference as the katz's lack of a desire or need to sell her interest in files you hear just a few examples five hundred and thirty seven in the appendix she testified quote i did not want to sell my her interests she didn't have any particular use for the money she says she testified quote i just ran my life didn't have any particularly large expenses except page fifty six the defendants never put in any evidence for s the plaintiffs would have held their shares because they were not in financial distress so for summary judgment purposes the court should have accepted as true that cats did not want nor need to sell or interest in a standalone transaction and she did not want need it just to meet her every day needs because mr mack since you're talking about the merits can i ask you this question that you have acknowledged in your briefing and i think the record supports this that the other two parties here bell varane and h p on did not wish to sell the property which was her desire and we who's to say or what's to say isn't entirely speculative about whether they would have stopped sold the property and so my question is what is her proof of of loss or what is her proof of damages how can she even establish that sure well i think if you if you if there's evidence in the record looking at it from a traditional frosting on the elements obviously are material misrepresentations made for the purpose of inducing reliance and causing damages if the if there's evidence in the record which we submit there is a wealth of evidence that she would have held onto her interest at the misrepresentations and omissions not been made then the question needs to be decided as to whether when the property in fact did sell now that's my question right yet and soon the record is that the property would not be sold well your honor i think that the problem with the district courts analysis and i'll turn to your question directly is that the analysis of the fraud case fro by the district court when she saw her interest but that's respectfully the question is if if if there is information in the record to believe that that transaction never would have happened meaning the sale of her interest the question is and you're not defrauded unless there is loss that you can prove correct and your affairs are in your briefing you say that the other two parties did not want to sell the property while she was still involved  so well that that's the that's not your honor at that time they didn't want to sell it that's right so what is the evidence that they would ever sell it that's all i'm asking because when when the property did in fact sell the representations related to the miss katz's ability eventually to liquidate their interest to resell of the property that's when she got the full value of her interest and the evidence st of all when when this occurred they were not interested in selling but the problem is they misled to believe that they have the power and the voting control to to ask you that decision whether to sell the property the fact is they lied to her about that and if one believes that she would have retained it then one there's evidence in the record that the two parties that did have voting control was dogs who represented the investors supported a sale  kadidia testimony going in both directions he said he would have gone along with whatever anybody want one whatever the partner wanted so the question is at that time if one believes that she would have held her interest the fact that for fraud purposes you have to establish intent to induce reliance when they made those statements they intended to get her to divest her interest by making her believe that if she if she didn't she be stuck in this partnership so two thousand and forty three which is when it ends and by causing that conduct you then look at well what would have happened had she retained it in the place is there something about the structure of these partnerships that would have prevented her from getting the correct information yes well she she asked well i think that's a fair question but for for a jury to decide your honor but she was a limited partner in a special limited partner of fallsview associates limited partnership she had no right to vote she had no right to specific information as to the underlying limited partner meaning w r c nineteen one hundred and eighty three dollars limited partner ship she was totally at the mercy of the so limited partner and the general partner she asked for information she asked who belgorod was she was led to believe that  she didn't aspecific leave the question of who has voting rights over the decision to sell she believed based on what i think it's not that she was a sophisticated limited partners she we have means to get the information if she had done her due diligence i think your honor the question these are fair questions because if it's reasonable reliance also correct that she reasonably when that on the information she received when she went with the excess as a certain amount of due diligence she could have found out the answers to this i think those are fair questions but again for material i mean reliance those are since those are ordinarily not susceptible to summary judgment decision i think you have to look at the record as a whole and based on the river the information she was given she was she went to originally went to the or the general partner and the person that she understood represented the investors and she said what's going on i'd like to sell the property they said while belle overruns the one making the decision they're calling the shots at that point she could clearly she could have done more but whether that's reasonable and whether that's what somebody else would have done in the circumstances those are questions for the jury that's that's the issue all these cases that deal with you know what happens after  person is defrauded into selling all the cases the jan again lanny lanny anson they all went to a trial to determine what was what would have happened had they retained their interest and that's the issue and the fact is when there's nothing in the record to suggest that when the property did in fact sell and the timeline is not very far i mean they've they look to sell the property within ten months of buying this katz's interest there's there's nothing in the record to suggest that while they may not have wanted cats in the partnership that when they learned that the property was in fact worth of eleven million seven hundred thousand dollars which is so far afield from what they thought it was words that they would have jumped at the chance to sell even if they had to share some of the profits with cats those are the questions that have to be answered at trial your honour's and that she wasn't given a chance to do so the teaching of jan again and it's progeny is well you happens the passage of time between the time where you were misled into one transaction and the time that the transaction occurs the later transaction that that shows the greater value councilmen counsel when you say in your brief that one i think it's pronounced who are on concealed from cats that bellaver ron was going to be involved in her divestiture of interest in it or new that she would not approve of that did she propose in the contract that there could not be a sharing or any alienation of her interest to belle veronica but what's in the record to suggest that she did anything to prevent that from happening there's nothing in the contract your honor that said don't share any of this money with governor on she relied on on the statements that they want working together and you know again whether that you know whether she could have done more to protect that materiality those are yes but you said she had you said she did not have information about the structure about who had what rights been asked about what her ability was to inquire into it and what what she might have learned so if she doesn't know that she doesn't know that it isn't going to be shared in some fashion correct but i think you see sophisticated under those circumstances if she truly has this concern wouldn't she take contractual steps to protect her interest i think i think the biggest issue you have to look at the three representation is as a whole and the and the biggest missed misrepresentation if i could rank them was the fact that she was led to believe that the person in charge that the person in charge of the decision whether to sell this property and where she would realize a liquidity event in their lifetime was bell aver on and that was simply not true ron had no voting rights and in fact didn't have a majority interest in the limited partnership economically and so when when she was led to believe that she was stuck either trying to get what she could for this interest who are sitting there at the mercy of bellaver and while it collects the cash flow from the rents until potentially two thousand and forty three when she'll be in or e d s she felt delver ron would make the decisions about whether the property could could be sold further if she doesn't want to sell her interest to delver and so she sells it to cats why would she under those circumstances think that delver and couldn't decide to sell the property when she was operating under the impression that it could well i think that i think she believed the over on went over and said i'm not going to sell the property we're not going to sell it in two different places in writing in addition to what she has told her she wasn't led to believe that she was locked into them of course it's always possible in the future in fact it turned out to be true that it could be so of course and so that's one of the questions that it better jury has to decide so if this were a case where ten years down the road it was sold obviously and it's a much different case but what happened was very  short time period after she sold and the evidence is disputed that the property was worth a lot more in but was pretty close we think to what it was eventually sewn for eighteen property was worth a lot more than what the defendants thought it was worth and i think that the evidence shows that she's right however what she was relying upon was the prospects of the liquidity of them and that's what she and a prospect of being stuck in this partnership that's what she was relying upon she wasn't relying on the defendants what she believed were not were not fair valuations of property she felt she knew that the property was worth a lot more but she felt like she was stuck in this and therefore she had to unload her interest or she might never see a penny in her lifetime that's been stopping there and ask if the court has additional questions at this time are you freezer sometime attorney todd if you would and mute your microphone in video but do not start your argument yet please allegations in the operative complaint are not true so i'm ready judgment became the only appropriate response the district court's granted summary judgment should be upheld but three separate and independently sufficient reasons st kat allegations and her attempt to rely on new arguments that she did not plead was improper nd even if she were allowed to change her allegations she could not establish wrongdoing and rd she cannot establish that damages despite she was repeatedly asked to provide any such evidence any comparisons to other properties that sold in the relevant time period she could not provide anything instead she argues that the two thousand and sixteen price is evidence of two thousand and fourteen value but it is not answered each the real estate professional who sold the property testified that the market for this particular type of property saw tremendous his word growth in two thousand and fifty and he also explained the technical factors that led to that growth for example scuse me let me just check you eleven thing i think that your brother said that in two thousand and fourteen she believed the value was closer to what it turned out to be in two thousand and sixteen did she say that in your deposition or anywhere there is no contemporaneous evidence that she believed the value was anything other than seven million dollars in two thousand and fourteen in two thousand and fourteen she made a comment to gina dodge who remembered it that got the property was worth seven million dollars additionally there is an e mail in the record where grant's sister writes i know you think it's worth seven million dollars but that is not attainable or something to that effect ok so all the contemporaneous evidence so it is not the case that we can look at a sale in two thousand and sixteen and say it must have been worth about guess in two thousand and fourteen so instead katz argues that she can calculate damages as though she had continued to hold her interest until tw sale offers regarding the property in two thousand and fourteen there was no reason for anyone to think it would be sold and there was certainly no reason to think that it would be sold for one seven one million dollars instead there is substantial evidence on the record that the remaining investors fourteen at least in the area of securities law there is there's a there's a doctrine that if there's fraud in the inducement then the damages don't have to be foreseeable anything that that as a matter of fact any damage that as a matter of fact flows from that fraud is can be ordered to be discords or results in damages that are recoverable are you familiar with those yet well erick's to what you're saying and tell me why that wouldn't apply here yes you are and that that line of cases and there are some caviar that i don't need to get into right now because that line of cases applies only when the wrong coming but it was i'm just to allow the wrongdoer to retain that through the deception in this case that doctrine cannot be applied to my clients because they did not retain were never received anything my clients are bell investment vehicle that purchased a portion of the proceeds that is the investment vehicle that receives the profits from the eventual sale of the property and if those that fund investors who ultimately profit so the defendant in this case have nothing thank you i'd like to address briefly attorney max comment that i'm focused on testimony regarding katz's lack of desire to sell and i'm a little troubled because that has to many contradicts the operative complaint paragraph thirty nine of the complaint states that ms katz desired to sell the property or at least liquidate her ownership in the company at the highest possible price that is what she put in her pleading and this is not a trivial problem her desire to sell her interest is not the sort of fact about which there could be a good faith mistake this is her complaint it is her subjective feelings if she put a false statement about her desire to sell in the complaint that's not something we can sweep under the rug and say well it doesn't matter because she can testify differently additionally you are judge thompson explained that reasonable reliance is what matters and i fully agree with that i would also say that whether there was reliance at all matters she was not to see if she did not think that belgrade was in control she actually in the summer of two thousand and fourteen retained counsel to write to oldenburg and complain about the decisions that he had been deposition that she believed that richmond limited investor shelter was driving the decisions so not only could there not have been reasonable reliance but there was not reliance in fact which goes to a similar argument that she made that she's trying to gather snippets here and there none of them put together a comprehensive case of why she could ever have a claim against these parties additionally since she's now abandoned her allegations she doesn't have any false statements there were no false statements instead she's relying on the idea of a half truth and i believe it's worth distinguishing the case that she talks about here the cannabis st and you know supreme judicial court decision in that case there were unsophisticated investors who bought property to use as an investment the property was advertised to them as containing multiple apartment when they toured it there was a for greater in every different unit there was a stove in every different unit it was very clearly in apartment building is very intentionally did not disclose it that violated his own name and building was this was a situation where unsophisticated buyers thought they were getting one thing investment property that they could use as mental property and they were not getting that the idea of a half truth still requires materiality and the idea that i don't run affiliated find purchased portion interest there's no materiality there questions from the court anything further mis rely on all of the same points in the arguments that that attorney tied just make if i can in a few minutes that i have i would like to address the ninety three a claim which is directed against my client only interrupt me if there are any questions or if you want me to go in a different direction but i want to address that claim briefly if possible this is section eleven claim this is not a consumer claim obviously so the higher more demanding section eleven threshold applies the district judge saw this as an appropriate case for summary judgment and not section eleven violation he was absolutely correct and i commend that perspective to this court this simply is not a section eleven case not even remotely close to it you have on the one hand a very sophisticated knowledgeable plaintiff who's assisted by lawyers from to offer arms who's lived in that area has grown up with this property formally managed it and whatever she may claim currently about her information deficits she knew more about that property and the data and the numbers regarding that property certainly than my client and our codefendant so she's on the one side of the transaction and on the other side you have some  willing buyers also in the same industry also knowledgeable sophisticated players but you have less information that the plaintiffs and everybody understands what everybody is about which is an arm's length negotiation over an asset that everyone has an interest in and what's abundantly clear is that the plaintiffs wants to sell it she admitted that in her pleading as attorney todd just pointed out and that's a judicial admission that's binding on her and she had made it through her actions as a matter of record facts that are in dispute she was trying to sell it to all burned for two point eight million dollars she made clear to gina dodge that she would sell it then she offered to sell it to bell over and then she offered to sell it to my client she wanted to sell her interest so she's a willing seller she she's not trapped she's not you know forced for any reasons to sell she wants to sell she wants to liquidate her share and so if if if she is saying the opposite that is at the time she sold if she'd known bell veronica was involved she would not have sold do we have a material dispute a fact no your honor we just have intentional and frankly cynical self contradiction by a claima that is coming to grips with the fact during the course of discovery that she doesn't have a claim and is trying to cobble something together that's all we have we know from her actions she was happy to sell to belgrade she made multiple demands on men she was at can act and read from an e mail just a portion of an e mail that that similar center also i have c c matt i gathered from our conversation today that you thought bill for an h p work together so she obviously knows there's some coordination of communication between age p and l right she's asking about it and he's answering her question the e mail continues matt's group is very different than bell for ron's a true statement that we both work on the secondary market another true one contradicted statement we have different structures and return hurdles also true i have c c matt on his email in case he's interested in purchasing your interest and let me know if you want to come down to a more reasonable number than one million eight hundred thousand so that that what started the conversation between the plaintiff and or no one is the seat on this team now one of the plaintiffs in sizzler then exchange further e mails in which they're all copied so that it's abundantly clear as a matter of writing as a matter of undisputed fact on the record she knows these guys are coordinating they're working together they're sharing bidding information they are not independent obviously and cheap we also know this is interesting she's not in a rush to sell she won't take one thousand which was the last number offered by sizzler she's willing to stand pat at that number she broke off the conversation with him at that number was only when one got involved and sweeten the deal and offered another three hundred thousand dollars that she got her number and she sold at that time because she got what she wanted and this is again i circle back to my larger point this is not a section eleven case this is just a garden variety negotiation and transaction of the sort that happens every day in this commonwealth and in this country it can't be a situation that gives rise to a claim for a jury and a judge to spend two weeks considering whether this plaintiff somehow was treated unfairly no this yes you actually had two law firms representing her at all pertinent times they were corresponding as attorney todd said with the general partner going back as early as two thousand and twelve about the value of the share and they represented her during the course of the negotiations and the closing and in fact her lawyer sent to an e mail to the lawyer for age pete saying he thought the deal was great and fair which it most certainly was all the bird thought her share was worth one point five less money than the one five h p paid her everything points in the same direction that that was a fair price and the plaintiffs who had more knowledge experience than anyone with that property knew it was a fair price so she took it but there's no section eleven unequivocally in their deposition that she thought the property was worth ten million dollars in two thousand and thirteen nd there's testimony there's there's evidence in the record that disputes whether belgorod this particular bill  yeah well there's all sorts of terrible evidence in the record that shows that the the value of the property was in fact closer to what she thought was ten million dollars then the five dollars to six dollars that they anything contemporaneous with the say oh yes evidence that she believed contemporaneous with the sale that the property had a greater value and if so could you just indicate what it is well you mean that she understood at that time yes at the time of the sale she she said it was based on her knowledge of the building the fact that the building at different amenities than others other properties in that area that it was that it any data contemporaneous with the say oh you know there was is there any statements by per contemporaneous with the sale evidencing her belief that the property was worth more than seven million interest yes yes you heard testimony that she thought that no in terms of statements from two thousand and thirteen but you know writing no she just she turning quickly to some of the points that mr mr o'connor made the information that she lacked is the what was important the fact that she knew about the property she was under and understood this market that she sophisticated doesn't mean that she understood who had the voting power and the ability to control a future sale that's what she relied upon with delver on and that's the information that she didn't have and again to the extent that someone can argue that she could have done more due diligence we believe that's an issue for her trial to determine whether the circumstances her reliance was reasonable we don't think that it could be made as a matter a lot particularly since the court never addressed whether she would have held onto or interest all in all the concern is whether she would have sold for a particular price they were comparing apples the sale of her transaction of is a free standing entity or interest versus apples when the apples need to be compared to the our image which is the sale of the property where the amount that she gets is so much more than what she would have received and then what she did receive and she suffered millions of dollars  damages and we believe that equity would determine that she's entitled to proceed against these defendants thank you mr mack thank you all that concludes our kumin in this case attorney mack turney taught an attorney a car you should disconnect from the airing at this time