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Goldberg v. 401 North Wabash Venture LLC

United States District Court, Seventh Circuit

May 21, 2013

JACQUELINE GOLDBERG, Plaintiff,
v.
401 NORTH WABASH VENTURE LLC and TRUMP CHICAGO MANAGING MEMBER LLC, Defendants.

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S CLAIMS AND PUNITIVE DAMAGES

AMY J. ST. EVE, District Judge.

Defendants 401 North Wabash Venture LLC and Trump Chicago Managing Member LLC, by and through their attorneys, pursuant to Federal Rule of Civil Procedure 50(a), respectfully submit this Motion for Judgment as a Matter of Law on: (1) Plaintiff's Consumer Fraud Act (the "Fraud Act") claim; (2) Plaintiff's Interstate Land Sales Full Disclosure Act (the "Land Sales Act") claim; and (3) Plaintiff's prayer for punitive damages under the Fraud Act.

LEGAL STANDARD

Judgment as a matter of law is appropriate when "a party has been fully heard on an issue... [and] a reasonable jury would not have a legally sufficient evidentiary basis to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). "In other words, the question is simply whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of the plaintiff. [A] mere scintilla' of evidence, however, will not suffice." Hall v. Forest River, Inc. , 536 F.3d 615, 619 (7th Cir. 2008) (citations omitted).

BACKGROUND

As this Court has held numerous times - and recently re-affirmed - "Plaintiff's theory of liability for each of these counts is that Defendants knew all along that they would never deliver the ownership of the hotel property and operations to HCU buyers, ' and therefore misrepresented, failed to disclose, omitted and/or concealed material information in connection with the sale of the HCUs." (Dkt. No. 313 at 2 (quoting Dkt. No. 170, at 21-22.) In other words, Plaintiff must prove - with respect to each alleged misrepresentation - that Defendants had a secret contrary intent that they concealed. (Id.)

The Court described the alleged misrepresentations that comprise each of Plaintiffs' claims as follows:

Ownership of Common Elements. Defendants represented that "Goldberg would receive her proportionate share of the Trump Tower Common Elements that included Meeting/Function Rooms, Ballrooms, storage areas and laundry facilities" but concealed that Defendants "were going to remove the Hotel Meeting/Function Rooms, Ballrooms, storage areas and laundry facilities from the common elements... and convert them into commercial property" (R. 48, Am. Compl. §§ 81(d), 82(d));
Estimated Operating Budget. Defendants represented that "the HCU Condominium Association would receive approximately five million dollars in commissions and rental fees generated by the Trump Tower Meeting/Function Rooms and Ballrooms" but concealed that Defendants "were going to keep all rental fees and commissions generated by the Trump Tower Meeting/Function Rooms and Ballrooms" ( id. §§81(e), 82(e));
The HCU Rental Program. Defendants represented that (1) Plaintiff would be "able to use her HCU as much as she wanted without adversely affecting her ability to rent it through the [rental program]"; (2) Defendants would promote the "fair allocation of rental opportunities [based on a rotation system]"); and (3) owners would "receive the gross revenue for daily rental, " but concealed that Defendants "were going to require Goldberg to contractually agree, as a condition of her participation [in the rental program]" that: (1) "each use of her HCU would adversely affect her ability to rent her HCU" through the program; (2) she would pay "previously undisclosed daily charges"; (3) Defendants "have complete discretion" over the allocation of rental opportunities; and (4) she would pay "for all damages to her unit caused by guests... as well as all charges, including room rental and hotel services incurred by such guests for which they failed to pay" ( id. §§ 81(a)-(c) & 82(a)-(c), (g));
Health Club. Defendants represented that owners were "entitled... to use the Trump Tower Health Club at any time, " but concealed that Defendants would only permit owners to use the Health Club when "actually occupying [the] unit" ( id. §§ 81(f), 82(f)).

(Dkt. No. 313 at 2.)

As explained in more detail below, Plaintiff has not introduced any direct evidence of concealment. Instead, she relies on Mr. Trump's testimony about his awareness that condominium associations are not well suited to operate ballrooms and meeting rooms. (5/15/13 Tr. at 529-531). But, as explained below, this circumstantial evidence is not sufficient to allow a reasonable jury to find that Defendants concealed any secret plans with respect to ownership of the ballrooms and meeting rooms. And, it does not relate at all to Plaintiff's claims that Defendants' concealed plans relating to storage areas, the Rental Management Program, or the health club. Indeed, it seems Plaintiff has abandoned her claims based upon these alleged misrepresentations altogether.

Finally, with respect to "laundry facilities, " Plaintiff introduced evidence that Defendants decided, as of October 2004, not to have commercial laundry facilities on the Trump Tower premises. (5/15/13 Tr. at 729-731.) But, as explained below, she failed to establish that: (a) Defendants ever represented that there would be on-site "laundry facilities"; or (b) that any alleged ...


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