3470 Club Center Boulevard, Naples, FL
Two couples who purchased golf membership contracts at Fiddler’s Creek have filed a federal class-action lawsuit accusing the developer of taking more than $10 million they say was to be held in escrow.
The developer, however, contends the conditions for keeping the money in escrow have been fulfilled and the lawsuit is baseless because it leaves out many facts.
Glenn and Dawn Vician and Richard and Kristi Lohmeyer, who filed their lawsuit in U.S. District Court in Fort Myers last week, also allege that the exclusive, private golf club they paid $90,000 to join as Gold Members, on top of paying $7,800 in annual dues, has been operated as a public golf course since last year, with the public being allowed to play through, paying daily greens fees and no initiation deposit.
Members learned the escrow account was empty at an advisory board meeting this month, the lawsuit says, but were not told why after demanding an accounting of their deposits, which were to be held in escrow until a second course and clubhouse were completed.
“Their explanation was that despite what they put in writing, they don’t have to put the funds in escrow,” said Robert Stochel, an Indiana lawyer who filed the lawsuit along with Vician, who also practices law in Indiana; Thomas Candler Chase, a Fort Myers attorney, will be co-counsel.
“We’re paying fees for a private club and it’s crowded because of what they’ve done,” Stochel said of developer Aubrey Ferrao’s decision to allow the public to play. “Instead of having an exclusive private club, they’re the proud owners and members of a public course. He’s now dramatically affected the value of the homes.”
The lawsuit, which says the two couples represent a class totaling more than 180 people, lists as defendants: Fiddler’s Creek LLC, which is doing business as Gulf Bay; Miami-based GBP Development Ltd.; The Golf Club at Fiddler’s Creek; 951 Land Holdings LLC; FC Golf Ltd.; and Ferrao, the president and chief executive officer of Fiddler’s Creek who also developed much of Pelican Bay.
When the Vicians purchased their Verenna condominium, they also purchased a $90,000 golf membership in January 2005. The Lohmeyers purchased their contract in April 2005 with their Menaggio coach home. The initiation deposits were paid to “The Golf Club at Fiddler’s Creek,” which was not a separate legal entity, according to the lawsuit, which alleges that allowed the defendants to transfer golf initiation funds without accountability.
The membership plan said the club would be private and exclusively used by the Gold Golf Members. The lawsuit says the Fiddler’s Creek Web site “brags” that it’s a private golf club and that, as a “public relations gimmick,” Gulf Bay created a golf advisory board composed of homeowners who paid initiation deposits. But the board has no real authority, the lawsuit says, and is limited to providing advice on how to operate the club.
On April 28, the Vicians asked the defendants to provide them with financial documentation and bank records to confirm their initiation deposits were still being held in escrow, but the defendants refused. On May 7, the advisory board called a meeting to request information from principals of The Golf Club At Fiddler’s Creek about the status of the account, which the membership agreement said was to be maintained by the defendants. A principal, Joseph Parisi, told the board there were no longer any golf initiation deposits in the account, according to the lawsuit, which says the Vicians received a letter saying their money had not been deposited into an escrow account.
The lawsuit says that was the first time members learned their money hadn’t been placed in escrow and that defendants hadn’t complied with the membership plan, which required that it be held until the golf club facilities were completed. Those facilities include two championship eighteen-hole golf courses, one designed by Arthur Hills; a driving and practice putting green; a roughly 30,000-square-foot clubhouse with a mixed grill room, lounge, pro shop and a men’s and women’s locker room. Members are now using a temporary clubhouse, but the Web site says a new one is pending.
The lawsuit says the defendants’ conduct and breach of contract has caused irreparable damage and financial loss to plaintiffs. By allowing the public to pay a minor “seasonal” rate, the lawsuit says, the defendants have effectively eliminated new Gold Members, since virtually no one has an interest in paying a $90,000 initiation deposit if they can have full access without paying that.
The plaintiffs are seeking recision of their membership agreement and a full refund, return of all annual dues for the 2008 and 2009 golf seasons, and compensation for the breach of contract. The lawsuit also seeks damages for breach of fiduciary duty, dissipation of escrow funds, conversion, and theft.
In addition, the suit alleges that Ferrao and GBP Development have failed or refused to pay real estate taxes and assessments on “scores of properties” owned by them in Fiddler’s Creek development over the past eight months, “indicating that they are grossly mismanaging the economic operations...”
The golf course allegations and real estate tax dispute also are outlined on the Fiddler’s Creek Homeowners’ Internet blog.
The lawsuit asks that a judge determine whether the defendants promised to maintain a private golf club, if they contracted with gold members to keep deposits in escrow until all golf facilities were built, whether they charged a deposit for a private course that was converted to a public course, and if Gulf Bay published false and misleading written information about the club and escrow of deposits.
Mark Woodward of Woodward, Pires & Lombardo in Naples, who represents Gulf Bay and is the escrow agent, called the lawsuit “baseless and without merit.” He provided a March 2002 letter asking that the escrow account be disbursed to 951 Land Holdings because all conditions had been met. The letter cites one golf course and the clubhouse, not the two courses and permanent clubhouse cited in the lawsuit.
“We expect that this lawsuit will be resolved by the court in favor of the golf club,” Woodward said.
He noted that Lohmeyer resigned his golf membership in October and Vician has refused to close on a contract to purchase a second Fiddler’s Creek condo and is embroiled in litigation with the developer.
Court records show Vician paid $371,000 in deposits on a Rosetta Coach Home in Menaggio and contends he was told there would be numerous upgrades that resulted in the higher price, including coffered ceilings, Lutron Centralized Lighting, a marble tub, a fire retardant system in the elevator, polished chrome laundry faucets, a bisque GE washer and dryer, and wooden box drawers.
Like the golf lawsuit, Vician’s 2007 Collier Circuit Court lawsuit contends Fiddler’s Creek used “deceptive marketing strategies,” and “fraud and inducement” to entice buyers into purchasing condo units. Fiddler’s Creek also sued Vician to collect the remainder of the contract price that wasn’t paid at closing.
“Mr. Vician, an attorney, has conveniently omitted from the lawsuit reference to the escrow agreement, which clearly contradicts the allegations of this lawsuit and explained the period of time when initial deposits would be escrowed,” Woodward said, adding that they were required to be held in escrow only until the initial golf course and temporary club facilities were completed and open.
“Those facilities ... have been open for use by golf club members since 2002,” he said.
Neither Vician nor Lohmeyer wrote their deposit checks to an escrow account, he said, adding that the governing documents spell out that the club allows the public to use the course. “As memberships are sold, access by non-member, guests of the golf club will be reduced and eventually eliminated,” Woodward said, pointing out that the lawsuit conveniently omits that.
A search of court records shows Vician has been involved in at least one other class-action lawsuit and was reprimanded by a U.S. District Court Judge in Indiana in 2005.
“Vician’s deposition reads like a training manual on obstruction and obfuscation,” the judge wrote in his decision involving a class-action lawsuit filed by Samantha Bell against Vician’s law firm. “Testimony of this sort creates one, unmistakable impression: The deponent has things he is desperately, and ultimately unconvincingly, trying to hide.”