i believe in right and wrong i believe in just in unjust i believe in fair and unfair and what happened to health and wellness at the hands of judge adams in this case was not fair was not just there's a reason probably with those beliefs that i became it's probably why i became a lawyer and there's a reason that the justice system and the court system upholds those ideals in the symbol for that is lady justice we've all seen that statue where lady justice is blindfolded holding the scales in one hand with a sword in a scroll in the other the scales represent fairness the blindfold represents equality and impartiality the sword represents protection and the school represents knowledge judge adams failed at all of those canons in its dealings with health and wellness health and wellness was not protected as me when i read your version of the sequence of the manage to cast what happened in the district court in a light that might tend to support klein's but the it's not exactly what happened here i mean you all have been trying to settle the case right and you didn't get it in an informal exchange of information whether it was pursuant to rule twenty six or just because you were trying to settle the case right and then it's at some point judge adams said well look it's time to move on and he wanted the defendant to our motion for s judgment which happened and then the were quest for scheduling order came not at the beginning of the how case but it can at some polling when you were getting geared up on the summary judgment motion correct correct and it's while it might be accurate to say that the parties didn't engage in formal discovery it's not accurate to say that the parties didn't exchange a good deal of information is it i don't think that what you're saying is accurate and it predates me so i'm a little bit in the dark i was replacement counsel i came in on right after they'd fallen for summary judgment i came in an early july so i was not involved in the winter and spring of two thousand and eighteen here's my understanding of how it went down based upon  speak what were you unable to obtain that would have been helpful to you what had you not of and that would have been helpful in the consideration of the summary judgment moves that's two parts and let me try to address your question and deal with the nd part the issue that had come up was this financial distress with this business and the information that i tried to obtain once i got involved but it's all post summary judgment was what was happening with its  lender there's applications that are filed with the lender there was information it was in the summary judgment with a declaration from a tax attorney who had worked on the matter for my clients mr garrison saying i make your clients  correct but you couldn't have tang your financing either right that's it's and i see where you're going with it and it's it's an interesting point so let me kind of come back on the if the correct it's what i  say they could have sell finance you're right they never had at the end a final approved commitment from a lender they had commitments from a lender in the midst of it but commitments if you work in private practice commitments from a lender are good for like a period of time so it'll be good for sixty days or open for ninety days and then you've got to reapply and we go through that process so in the midst of it before we found out of this myer standing is that there was an approval whether they agree as a final approval from a lender there were proven from a lender and there was even a filing from their attorney in a california court proceeding saying that the loan had been approved what happened at the end is in two thousand and seventeen all this income gets written off there was an issue with a forbearance on a consolidated loan between these two related entities that are the seller which is in the affidavit of jim garrison so what we were trying to get to was and the lender issue was a little bit of a red herring what we were trying to get to what i was trying to get to is you have to report on an s b a loan to your lender you have to provide financials to your lender you have to apply for a loan there was an allegation that there was a forbearance entered into which means that the loan had gone into some type of the fall we were attempting to obtain that information so we could see is what we were given in a financial statement the same that was being provided to the bank we all know that the best way to test the credibility of a witness or information is to look at what you were given and to look at what they said to someone else do they match do they not match ocean to ask for further time to put the record yes i found a fifty six d within a week i think of being hired of all the five thousand and sixty and it was never ruled upon and then denied as moot the and sixty requesting discovery i requested discovery i explained how the case had been sidetracked by this attempt to salvage the deal with some limit which is always a good thing to try to do went past the deadline a couple of  we called it a motion for extension in a five thousand and sixty i said i'm brand new counsel i've got to get my you know my feet underneath me and got to learn this case and it was never ruled upon and i even called the court staff attorneys and bailiffs and said are we going to get a ruling or do i have to respond to summary judgment within one thousand and eleven dollars days of being hired i had to respond to summary judgment let me come back to the issue that judge gibbons had raised and judge seiler has raised with regards to the financing hopefully i fully put this in my brief the financing and this one contingency is a red herring it's smoke and mirrors we do not want the property the property was sold to the city of green during the lawsuit tab you were attempting to go forward with the correct it's it's not just attorneys fees it's consultants and permits in engineering so you think you've got a deal and you think the property is this hey this is a good income producing property this will be great they work on their due diligence i have heard the defendant apollyon argue a point sometimes it's the sale of land it doesn't matter what the financial stake it's absolutely false this was the sale of the business as a going concern well that's your theory of the case your theory of the case is that you were induced to continue to negotiating the deal because he gave you fraudulent documents at the time you signed initial agreement that deal never closed  your is your theory of the case that you would've pulled the plug right the beginning had they given you proper financial information but they gave macau try finish but they gave you information that was incorrect and you based upon incorrect information you continued this lengthy process that generate all these fees until the final final point at which you admittedly could close absolute correct it was the issue of being led down the primrose path so if you we had signed a letter of intent at the beginning and we got the financials put forward that would help us agree with your position that had you had this information up front you would have pulled the plug as opposed to thinking you know i see there's a problem here with the with the how they're paying the rent i think you mean we're paying it  but this might still might be a deal we're going to pursue you're saying what would what evidence did we had that we would have pulled the plug again that would have been done there were no depositions and there was no discovery of my clients have been deposed they would have said that  it's in the affidavit that they filed in a in support of the brief and up on summary judgment which was we didn't know all of this we wouldn't have pursued it but we were kind of all dealing with that tangential issue of the financing which was such a one off and i judge adams never really got it i think he saw an opportunity to use what he considered a condition precedent to kick a complex case and it wasn't the issue so let me go to the purchase agreement under the purchase section for it lays out all of the solar for up to warranties and section five on all those go away if the deal doesn't close and i'm glad you brought up to exactly where i was going that's what judge adams how he dealt with it they do not in section nine  exact to be extinguished through other provisions i thought maybe nine three saves conditions and nine point one but the way i looked at it was that nine point one encapsulates all the material reps and warranties and that nine three says that that survive so while the judge looked  it as financing as a condition precedent we were saying what comes st the chicken or the egg how do you how do you get your financing if you don't have accurate financials and if the financials have been represented unwarranted as true and accurate and the state of the business is true and accurate but it's not that's a default by the seller that survives the terminations and i never could could get him to grasp that we argued in the brief and up on summary judgment we argued it here with the briefing here which is common law claims right we felt as if it was going to be there we're just going to get railroaded he basically told told me and i don't mean to use that and likely he basically told us you're going to lose and we're going to sanction you and that was it's like ok why are we going to pursue the fraud claim when the meat of this claim is the breaches in the reps and warranties that survives the terminations the closing or lack of closing in you know i don't know what else to do with a federal it is my honor and privilege to appear before you because in all probability this will be the last one hundred appear before the son of a court after forty one years of practice however this case is striking plea similar to a case i argued before the that case plaintiff's lawyer castigated the judge before the court in this case you've heard the comments about it in that case this horrible court sustain the motion for summary judgment i hope the result to seen is here today i want to at the outset dismiss and dismiss without process find my mistake i apologize to the court i apologize to mr an area after forty one years of practice i continue to make mistakes but this case is about who's the victim in this case and that happens to be mr neary we have an eighty year old man who's been taking care of an invalid wife for over half a dozen years the last two years bedridden and god rest her soul she just parted in the record it's in the record that he's an eighty year old man yes and in any event what happens is honor is that he's got to he's got two golf courses ok and he sees this knight in shining armor coming along which is health and wellness the bank is telling him what to do what not to do he's got to do courses he's got a spouse so what happens is they sign a letter for ten in july of two thousand and fifteen then they sign an agreement august twenty four two thousand and fifteen to separate purchase agreements but there are two specific conditions in there one was a condition proceeding with for a written unconditional commitment for financing from a rd party the nd was a confidentiality clause now why is that important because if you've got a country club and people find out you're going to sell it then the members leave you can't get bookings and that's exactly what happened in this case while he was being strung along for three years all of a sudden membership starts to go and the bookies don't go and proof positive rosemont country club just recently closed this poor bright has no place to go and being the father of a recent bride i can tell you you certain when book a place if you don't know absolutely you're quibbling with the threshold point that all the information you provided was accurate it was accurate there's been no proof that it has been inaccurate in fact we just had a telephone call in the contemporaneous case because they've sued the accountant down a state court and the lender said on the record there was no forbearance there was no link this nothing we were making money but the bank was dictating what we were doing i thought the issue was the need for a hold of our three weeks at rain tree and press with they're going to every little everything they've got all the records so what happens in june in june this is new who's the attorney and there's a sister who's a doctor sends an e mail to john kerry and says john i want to call you and tom and see where we are in the amends that's extensions i talk with carolyn today and have the amendments of the tax returns which show bad debt expense debt forgiveness that's in june of two thousand and sixteen if this makes a little difficult i am hoping the lenders don't come back and say they will offer a lower loan rate so before the st amendment before the nd amendment before the rd a minute before the th amendment they know that there is de court to believe that we're playing hide the piece and he took me over the coals as mr callus you're going to provide us with all this information i said yes your honor my undergrad reads a county i have no problem so we gave him all the information that everything and the point of the fact is is they had the information in two thousand and six on this debt forgiveness here's what it says to her financial lender she sends an e mail to financial in or says simply a forgiveness of debt of about one hundred and ninety two thousand which you will see in the press the club and this is like the other recognized something you didn't address down in the trial court so yes i waiver suppose they had suppose we thought think they raised it or even if they did i think that that's their document it's ironclad as far as i'm concerned and it's in black and white what they say is what they say is and i quote no claim for breach of any representation or warranty of seller shall be actionable or payable if the breach in question results from or is based on the condition state of facts three record yes and what and so what you need to understand is he took me over the coals so he said counselor you're going provide this information so this is what we did january nd we go up try to get it settled the very next day i provided to them and seventeen information for both courses remember at that time there was only deal for one prestwick braintree was out of the picture it was only press week and it was supposed to close on may thirty one two thousand and seventeen the next one june t april th taxies april th five days i don't think that's a big delayed we give the tax returns for all three on may th i gave them the st quarterly report from january to march for both courses of twenty so they had all this information i wrote them ten times please provide me in writing and unconditional written commitment i'm still waiting i'm still waiting for that so when the when he signs an affidavit and he did sign an affidavit to say help them they knew about it if the numbers were inflated you couldn't get a loan if the numbers were lower you sure said i'm going to get a loan they're the ones that couldn't make the condition proceed and then coupled with all that there was discovery i gave him six thousand four hundred pages of almost sixty pounds worth of material they gave us four thousand five hundred pages back there was full discovery the only thing in there was written discovery that was exchanged about the rediscovery here it was a battle for from the part back down there the only entity that's lost any money in this case is mr rainier he's racked up well over one hundred thousand dollars or side spent a lot of money on lawyers and accountants and that kind of what they did but they did it with their eyes wide open we were strung along the issue i guess right is entertaining this idea suppose so i think their theory is that you give a misleading information at the outset and they would have not signed that initial agreement i would have pursued three years of my diligence to potentially close the deal and i lease read sections nine nineteen point three to potentially create committed by your client that survives even the deal not closing but there's no evidence it was false ok so so with respect to that pattern that theory one of your arguments is that there's no falsity and we gave them all the record to digest as you've helped us realize this morning but in my opinion i don't i don't believe those particular clauses survive i believe that the the clause that we cited the cause was that i think you're reading but i couldn't tell which c media let me get it from in that i just i heard you were reading earlier but i couldn't tell which it's only in the judge's opinion and i'm sorry you also made a point that that they didn't preserve this issue they did not they did not argu it at the end of the day they haven't been damaged it in the day it took them three years to get assuming all this assuming all this they couldn't get the unconditional letter this is far from an unconditional written commitment from a rd party financial institution that's as good as it got in may so if you're going to send it back down and i hope you don't we're going to be right back up here again because i strongly feel and the reason what i need to tell you is assumes the father would have more chance to come back well that could be but let me say this we filed our motion for summary judgment on june th with opposing counsel i had numerous conversations with them and i told them joe you've got you've got nothing here please dismissed june twenty one he files a motion to withdraw when new counsel gets on i tell him what the lay of the land is like i've always done my forty one years of practice it's look you've got nothing here please let's not let's not spend our time and efforts on all this you the membership is now back up over three hundred so it wasn't as if there was anything false here they just want to get into a business that they don't understand the golf business is extremely difficult and they're doing well and i and the victim in all this and i have to say this with my with with all sincerity was john ranieri who was strung along for three years and he finally got out from under all this and i strongly believe the judge adams got it right and he would have sanctioned them and he should have sanctioned opposing counsel misstatements and no discovery and i don't have the tax returns i don't have this i don't have that they have th there are famous last words for laurel try to keep it short and sweet right judge givens brings up a wonderful point when she was talking mr callous none of this is in the affidavit to declarations i mean there were there was whether you got the discovery you know a crime you wanted whether you got a scheduling order which is kind of i mean i record it's not in the record i'm not and i want to be careful with this i'm not saying that mr callus didn't give certain things to my predecessor counsel what i'm saying is that there is no order from judge adam i mean even if if it's not in the record it would be incorrect as a lawyer for you to make representation to us that you didn't know certain things if in fact they were contained within the materials that had been furnished to your predecessor at a prior tab i mean we want you to be straight with us about it and and and we have to decide this based on what was in the record but i mean at a sort of feel like i'm not sure i'm getting the the straight story from everybody about what happened to her and let me see if i can if i can clarify that what i'm saying is that there was no formal discovery of any kind i got that for summary judgment did they give certain financial records to my predecessor personally judgment yes at what point it would have been in the spring of eighteen was there an order from judge adams ordering them to produce that no was there any lender information from them provided us that we don't think it's determinative as being we want to know what information the point at which you had the information that you client made you decide not to go forward with the deal who i mean you've represented that it was very very very light and again correct your opposing counsel is telling us something different that it really was two or three years earlier my clients are telling me that it was the summer of two thousand and seventeen that they uncovered all of this in fact the tax return for two thousand and sixteen couldn't get filed until the spring of two thousand judgment we stated the issue of whether there was or was not a terminations or a condition precedent becomes ultimately immaterial all of health and wellness is claims for damages survived any alleged terminations or any argument made to defend its motion and then we say to that