Welcome

I have discovered that there is no shortage of interesting, sometimes humorous and occasionally outright quirky legal disputes that have a golf connection. Please enjoy

I also invite you to join the Golf Dispute Resolution Linked In group, which you can access here.

Please don’t hesitate to share ideas for either the blog or the Linked In group.

By way of background, I am an attorney who serves as general counsel to a financial services company.  I also frequently serve as a mediator and arbitrator. And, of course,  I enjoy golf, most often at the Yale Golf Course. You can learn more about my experience here.

Now, for the required disclaimer, so I can remain in the good graces of the legal ethics powers-that-be:  This website, which may constitute Attorney Advertising in some jurisdictions, is for informational purposes only and does not constitute legal advice.

Best,

Rob Harris
rharris@golfdisputeresolution.com
914-482-2448

 

 

By: Rob Harris

Golf course owners–especially municipal owners and homeowners’ associations–often confront a seemingly attractive option to outsource the golf course operations, and effectively become a landlord, collecting a monthly payment from an entrepreneur who stands to profit if the golf course management business proves lucrative.

Even if the outsourcing agreement contains favorable terms, words do not necessarily translate into $$$, and the golf course owner remains vulnerable to an operator who proves incapable, undercapitalized, dishonest or well-intentioned but unable to survive adverse market conditions. When an outsource provider fails, the course owner may face enhanced difficulties and expenses in regaining control of the property and restoring operations.

A recent Connecticut lawsuit drives home this point. The City of Hartford outsourced for many years its course operations to MDM Golf Enterprises, LLC. The City recently filed suit against MDM, alleging the outsourcer failed to maintain the course, failed to make required capital improvements and failed to maintain sufficient capital. The City reportedly has been required to invest substantial funds and to bring in outside consultants, details of which are set forth here.

Signs of MDM’s financial difficulties came to light two years ago, when another Connecticut club announced plans to sue the company for failing to make its monthly rent payments.

The takeaway for clubs involved with, or considering, outsourcing arrangements: due diligence is key–not only at the time of contract, but on an ongoing basis. Contracts can include provisions enabling course owners to gain access to financial and operational records, which can provide a regular vantage point into the solvency and performance of the company to whom the keys to the course have been entrusted.

By: Rob Harris

So, golf course owners, unhappy with the financial condition of the course, proceed to negotiate a sale to the homeowners’ association that appears to represent the neighbors that surround the golf course. The homeowners’ association approves the transacction, a contract is signed…. all is well.

Not so fast. In February, we posted about the dispute that emerged in Louisville, Kentucky’s Glenmary subdivision in the aftermath of just such a contract. Neighbors, unhappy with the contract–and apparently switching from a majority in favor to a majority opposed–effected a change in the composition of the board of directors. The new board refused to proceed with the purchase, resulting in countersuits by the golf course owner and the homeowners’ association.

Now, several months later, others have joined the fray. Specifically, the court has granted permission to 200 home owners who oppose the purchase to intervene in the litigation.

The court also has ordered the parties to proceed with a mediation, undoubtedly hoping that order can be restored from chaos, with a negotiated resolution following.

By: Rob Harris

Those interested in acquiring a road-capable vintage Ford Mustang would do well to look under the hood to make sure there’s an engine. Similarly, a golf course purchaser, interested in making sure the acquisition is golfer-worthy, should confirm it can provide parking for its customers.

Last year, the Holmes Harbor (Washington) Sewer District purchased the 18 hole Holmes Harbor golf course from entrepreneurs who acquired the then-closed course two years previously. The golf course acquisition provided the sewer district with a place to dispose of treated water, which, in turn, enabled it to preserve a necessary permit.

Now, however, the sewer district finds itself headed to court with the sellers. Why?

The sellers reportedly have barricaded the parking lot used by the course. Apparently, the sewer district acquired the golf course without obtaining ownership or leasehold rights to the parking.

Its unclear from the early reports whether the sellers are leveraging parking lot access for monetary purposes or other reasons. The sewer district argues that, notwithstanding its failure to explicitly acquire rights to the parking, it–and, more importantly, its golfers– nonetheless maintains a legal right to access.

Look for a resolution to occur, and for the resolution to include the payment of $$$ to the sellers.

The moral of the story: before buying that Mustang, pop the hood. Before buying a golf course, make sure the golfers will have a place to park.

“I’m disappointed at the Trump Organization for putting up that flag without adhering to the rule of law,” said Coastal Commissioner Wendy Mitchell. “However, I think this flag now has become a symbol and to the people in this community this flag symbolizes patriotism.”

Read all about it.

By: Rob Harris

Courtesy of the Arizona Court of Appeals, Donald Welz may have a unique place in the annals of golf history. He may be the only person ever to have lost his job because he pocketed a fellow golfer’s golf ball.

The Arizona court’s opinion describes the scenario as follows:

“The events ultimately triggering Welz’s dismissal began on February 12, 2009, when Welz went golfing with three fellow officers. Welz’s group was apparently playing at a slow pace, and by the third hole they had already allowed two other groups to play through. After Welz’s group completed the third hole, and as they were leaving the green, a golfer in a group behind Welz’s group hit a shot that nearly struck one of the officers. In response, Welz picked up the golfer’s ball and placed it in his pocket. Upon failing to locate his ball, the golfer approached Welz’s group to ascertain if they had seen it. Rather than admit he took the ball, Welz denied having seen it, and pretended to help the golfer look for the lost ball.”

Welz’ employment problems began when he couldn’t resist sharing the story at work. As the court describes,

“the following day, Welz recounted the story in the police department’s locker room. Welz’s supervisor, Sergeant Harrold, heard Welz’s recitation of the events and asked if he was describing a theft. Welz responded, ‘Yeah, I guess we are. Call the cops.’ After confirming the story with the officers who had golfed with Welz, Sergeant Harrold initiated an internal complaint against Welz.”

Pursuant to the filing of the complaint, Welz provided a recorded interview, during which “he admitted picking up the ball, placing it in his pocket, and still having possession of it.” According to the court,

“he further explained that golf is a ‘gentleman’s game’ and, as a result, people ‘will do, if you will, sneaky shit like that to get their point across.’ Welz also admitted telling the golfer he had not seen the golf ball and pretending to help the golfer find his ball ‘to make the story believable, so to speak.’”

Following the interview, Welz–who already was on probation due to another incident–was suspended and thereafter dismissed, with the hearing officer upholding the termination:

“Since Welz avoided responsibility for his actions and tried to deflect his actions from misconduct to admirable behavior, since Welz’s excuses about his misconduct were lame and since Welz’s impulsive sarcasm when summoned to account for his misconduct has been a hallmark of his overall attitude, Chief Doyle had cause to implement serious disciplinary action.

“Welz’s misconduct … showed poor judgment and a lack of respect for the citizens of Lake Havasu City, his actions showed a callous disregard for the property rights of the citizens of Lake Havasu City, and his actions were in derogation of Police General Orders which required him to conduct himself in a manner that will reflect favorably upon the Police Department and to avoid conduct that is unbecoming to the Police Department such that it could bring the Police Department into disrepute or reflect discredit upon an employee.”


By: Rob Harris

Based upon my observations, the conversation among the competitors at the Yale Golf Course Senior Match Play Championship this weekend was notably more mundane than that recently ascribed by the Securities and Exchange Commission to a group of New England “competitive amateur golfers.”

On July 11, the SEC “charged a group of friends, most of them golfing buddies,” with insider trading, alleging they made more than $554,000 of illegal profits from trading on inside information about Massachusetts-based American Superconductor Corporation.”

The SEC has alleged that “Eric McPhail repeatedly provided non-public information about American Superconductor to six others, most fellow competitive amateur golfers.  McPhail’s source was an American Superconductor executive who belonged to the same country club as McPhail and was a close friend.

“McPhail…misappropriated the inside information about the energy technology company and fed it to his friends, often via email.  The insider-trading ring included a handful of golfing buddies…

“Whether the tips are passed on the golf course, in a bar, or elsewhere, the SEC will continue to track down those who seek an unfair advantage trading stocks,” said Paul G. Levenson, director of the SEC’s Boston Regional Office.”

Four of those charaged–John J. Gilmartin, Douglas Clapp, James A. “Andy” Drohen and John C. Drohen–have entered into consent judgments with the SEC.

 

 

 

By: Rob Harris

Disputes over hole-in-one contests arise every so often.

Folsom Lake Kia arranged to have a $66,000 car parked at the par 3 third hole at California’s Granite Bay Golf Club during the Eureka Schools Foundation charity golf tournament. Along comes Alan Ross, cans his tee shot, and poses for a celebratory photo next to the car with, among others, Kia dealership owner Chuck Peterson and his son Jon.

As Ross explains, “everybody freaked out. They were hooting and hollering. We were all taking pictures.”

If Ross had plans to drive his new vehicle home, those hopes were dashed when the dealership claimed a mistake had occurred–the car itself was not the intended prize. Instead, Winner Ross was entitled to a $25,000 gift certificate.

According to the dealership, the Foundation goofed by omitting from the contest materials a statement that the prize was $25,000. The dealership also blamed the company that insured the event, for failing to include on signage that the luxury sedan was only for display.

Dealer Peterson confidently asserted that, ”although this wasn’t something that was completely our fault, we’re going to make it go away.” Following a meeting, however, he seemed less confident, proclaiming that the dispute is “in the hands of the lawyers.”

As for Mr. Ross he expressed the views of most rational human beings: ”I was really hoping to avoid any legal action.”

Mediation, anyone.

For those interested in stories about other hole-in-one contest disputes, see here, here and here.

By: Rob Harris

Rex Hoggard at Golf Channel has reported on a “brewing conflict” between the PGA Tour and the association that represents most of the tour caddies.

Formed last year, the Association for Professional Tour Caddies describes its goals and purpose as follows:

“APTC was created to unite caddies for the betterment of the profession and to inform others of the positive attributes of professional caddies. APTC strives to provide long term benefits that will protect caddies and allow for retirement when caddies are no longer able to serve professional players and professional golf. APTC will provide caddies with group benefits programs and a greater voice in professional golf.”

According to Hoggard, the APTC expressed in a letter to the Tour its frustrations in obtaining Tour commitment to the new organization’s goals. Additionally, the APTC is seeking clarification as to the ability of tour caddies to pursue sponsorship arrangements.

By: Rob Harris

Attention all golf range finder users. You may find yourself on the witness stand in the United States District Court for the Southern District of California.

Prestige Flag Mfg. Co., Inc. has just filed suit against Standard Golf Co., claiming that Standard’s laser reflectors, inserted onto golf flagsticks, infringed Prestige’s design patent.

Prestige alleges that its “design patent covers the ornamental features of [its] Smarty 5 Reflector, such as its shape and the location and distribution of prisms throughout the device,” and that Standard “chose to infringe Prestige’s design patent.”

According to Prestige, “the resemblance between [Standard's] Laser Reflector and the Smarty 5 Reflector (and the design claimed in the ’405 Patent) is such as to deceive an ordinary observer, giving such attention as a purchaser usually gives, including inducing the purchaser to purchase one supposing it to be the other. Defendant’s Laser Reflector has an overall appearance that is substantially the same, in view of the prior art and in the eyes of an ordinary observer, as the Smarty 5 Reflector.”

I bet you didn’t know the extent of trench warfare that can occur between competing manufacturers of flagstick reflectors. Now you do.

For those of you who may qualify as “ordinary observers,” stand by in case Prestige wants to ask you about the resemblance of the products. Or, given that the case is pending just down the road from Torrey Pines, perhaps you should volunteer to be a witness. Just don’t forget your range finder.

 

By: Rob Harris

It’s difficult not to think about New Jersey’s reputation for public corruption–deserved or not–in reading about the fate of a golf course employee found guilty of what many would argue is petty crime.  Viewed against celebrated stories of misconduct and financial shenanigans at the highest levels, those believing in second chances and redemption may be troubled by this recent decision handed down by the New Jersey appellate division.

Let’s let the court describe the scenario:

“Defendant was employed in a civil service position as a golf ranger by the Monmouth County Parks Department (Parks Department). Following an investigation into suspicious cash refunds that went through defendant’s register, golf course administrators identified forty suspect transactions between the dates of September 5 and December 23, 2012, totaling $3460.64. After her arrest in January 2013, defendant admitted stealing cash from the golf course since 2012. She pled guilty to third-degree theft, and, in providing a factual basis, testified that she stole approximately $3400 from the Parks Department during a six-month period in 2012. As part of her plea agreement, defendant entered into a consent order in which she forfeited her public office and was disqualified from holding public office in the future.”

As does many states, New Jersey offers a pretrial intervention program, which is designed to permit suitable candidates to avoid what may be significant punishment associated with certain arguably minor crimes.

The director of the New Jersey program recommended the admission of the defendant into the program. The prosecutor objected, even though the prosecutor acknowledged the following:

“The defendant is a 34 year old single female. She has never been married and does not have any children. The defendant is a 1997 graduate of Marlboro High School. She also attended Brookdale Community College but did not graduate. She has been a  resident of the State of New Jersey her entire life. She denies any past or present problems with drugs or alcohol. She reports that she is in good physical and mental health. The defendant has no prior criminal history. She was employed by the Monmouth County Parks System from 2001 until 2013. The defendant has expressed remorse for her crimes.”

As to the crime, the prosecutor explained as follows:

“At all times that this offense was committed the defendant was employed by the Monmouth County Parks System through Civil Service designation as a Park Ranger. She was assigned to work at the Charleston Springs Golf Course in Millstone, NJ as a golf ranger. In this capacity, she manned the cash register and collected greens fees from golfers. It was this position that she used to commit her crime. On dozens of occasions from August 2012 through January 2012, when the defendant would receive cash payment for greens fees from a golfer, she would enter the transaction into the cash register or the point of sale terminal (“POS”). Later, when alone, the defendant would manipulate the POS system so that it appeared that the golfer received a refund for their round of golf, when in fact they had not. She would remove the cash from the POS and place it in her pocket. The total amount stolen in this manner was $3,460.”

The prosecutor offered the following as the reason for opposing the defendant’s recommended admission into the pretrial intervention program:

“This case involves a defendant who, as a public employee, was entrusted to handle greens fees for the county parks system. She used that position of trust and confidence to steal. Additionally, there exists a strong public policy in this state to hold public officials or employees accountable for their crimes. To grant her admission into the program would send the message that public  employees are not being held accountable for the crimes they commit against the public that they serve.”

The trial court rejected the prosecutor’s argument and deemed the defendant to be a suitable candidate for the program. The trial court specifically rejected the notion that her employment at a municipal golf course should disqualify her. According to the court,

“the defendant was not appointed to serve, she was not an elected official, she was a golf ranger who worked on a public golf course. The defendant was no different from an employee working at a privately-owned golf course, but for the fact that she was a civil servant working at a public golf course.”

The trial court’s decision, however, did not stand. Although acknowledging that the “defendant’s status as a public employee does not necessarily preclude her admission into PTI,” the appellate division nonetheless found the nature of her employment to be a dispositive factor. According to the court,

“As the Prosecutor observed, defendant was entrusted to handle greens fees for the county park system, a position of trust and confidence that she used to steal from the public. The fact that defendant may have been admitted to PTI if she had committed the same offense in private employment does not render the Prosecutor’s decision a patent and gross abuse of discretion or qualify as a compelling reason for her admission. Public employment is a privilege and, in establishing a presumption against admission for a public employee ‘whose offense involved or touched upon [her] public office or employment,’ the Legislature clearly expressed its intent that cases involving public employees are subject to a different standard for admission into PTI.”


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