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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

Dominating the golf legal world this week is the report that Rory McIlroy will absent himself from tournament golf for the next month in order to prepare for his upcoming court case with his former management company.

Apparently, an attempt to broker a settlement through mediation failed. Trial of the dispute is scheduled for early next year, with suggestions raised that McIlroy will be required to miss additional tournaments.

The reasons for the failed mediation have not been publicized. However, we can speculate.

With both sides presumably represented by capable attorneys and advisors, they each have the ability to make reasonable projections as to the range of likely outcomes. There’s nothing particularly complicated about interpreting a management agreement, assessing the strength of “off contract” claims and defenses, and estimating the damages that reasonably would flow from a breach. Lawyers and their clients engage in this analysis all the time, and arrive at results that provide an appropriate basis to fashion a settlement.

There are two circumstances that impede the process. Sometimes, one of the parties may be emotionally overinvested, in which case rationality takes a back seat. Nothing I’ve read about Rory McIlroy suggests that he fits this category. Similarly, it’s unlikely that a sports management company–with its dependency on professional athletes for survival–would turn a business claim into a vendetta.

In other situations, seemingly straightforward settlement logistics are overridden by an extraneous bargaining chip that one party holds. In this dispute, simply by insisting on proceeding with the litigation and the trial, the management company can deprive McIlroy of the ability to devote his attention to his professional golf livelihood. Since the trial is not scheduled to occur until early next year, it’s likely that the management company will be conducting a deposition of McIlroy within the next few weeks.

Using the legitimate threat of the ongoing litigation, the management company may believe it can “encourage” a premium on settlement. Perhaps McIlroy, rather than folding, is indicating his willingness to stand tough.

Best guess–this is high stakes posturing. The case will settle before the scheduled trial date.

By: Rob Harris

After purchasing ownership interests in two Florida golf clubs, the plaintiffs determined they had been hoodwinked. They brought suit against various parties, “alleging that the private placement memorandum used was false and misleading” and that the law firm that represented them in the transaction “failed in its duty to ensure proper disclosures were made.”

The attorney representing the plaintiffs in the litigation applied a belt and suspenders approach, causing basically the same lawsuit to be filed in three places: California state court and federal courts in California and Texas. Thereafter, the litigation counsel advised the plaintiffs to voluntarily dismiss the state and federal suits in California and proceed solely with the Texas federal lawsuit. Plaintiffs took this advice.

At the time they took their litigation attorneys advice, the plaintiffs apparently were unaware that the federal courts have a “two-strikes-and-you’re-out” rule. The federal courts permit a party to voluntarily dismiss a case one time, without prejudice. Dismiss a case twice, however, and you have a problem.   Rule 41(a)(1)(B) of the Federal Rules of Civil Procedure states that “[u]nless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”

Grabbing hold of this rule, the law firm that represented the plaintiffs in the underlying transaction successfully convinced the Texas federal court that the lawsuit there–the sole remaining lawsuit–needed to be dismissed, since the plaintiffs had dismissed both the California state and federal lawsuits.

Having gone from three to zero pending lawsuits, the plaintiffs went running back to the California state court, asking that their lawsuit be reinstated. The plaintiffs argued that “they did not provide ‘informed consent,’” because based on their litigation counsel’s mistake, they “were assured their decision to voluntarily dismiss the two actions would have no adverse impact upon the related Texas federal action.”

While plaintiffs convinced a California trial court to reinstate their lawsuit, the California Court of Appeal reversed that decision, directing the dismissal of the lawsuit. As the Court of Appeal explained, “we are not aware of, and real parties have not cited to, any authority indicating a voluntary dismissal resulting from erroneous legal advice is void…  The fact that [litigation counsel] mistakenly gave incorrect advice leading to dismissal of a separate case in another jurisdiction does not render the dismissal in this action void.”

The upshot? The attorneys who represented the plaintiffs in the transaction prevail. The attorney who represented the plaintiffs in the litigation may face a malpractice claim.  Ouch.

Here’s some wise advice from Attorney David Allen for homeowners contemplating the sale of a home that borders a golf course:

“When In Doubt, Disclose, Disclose, Disclose”

The highly publicized litigation by homeowners living adjacent to golf courses focuses on the homeowners’ rights to force the golf clubs to take measures to prevent the incursion of errant golf balls.

Attorney Allen’s article focuses on the rights of a home purchaser against the seller of the property. He suggests that a seller cannot take comfort in “buyer beware,” even as to something as obvious as having a golf course as a next door neighbor.

 

By: Rob Harris

So much for the myth about golfers needing silence.

East Hampton (New York’s) exclusive Maidstone Club is upgrading its irrigation system. The plans call for a new pump house. Those concerned about the noise apparently aren’t the golfers, but the nearby neighbors, who have instituted litigation challenging the plans.

Read more here.

By: Rob Harris

Attention casual readers: This entry may be destined for the “Best Of Golf Dispute Resolution”:

Free on $250,000 bail, Dr. James Simon has been charged with attempted manslaughter and assault with a firearm, after shooting William Osenton twice in the abdomen.

Here’s how a local news source described the incident:

“The shooting occurred July 17 on the 5100 block of Paradise Drive near Robin Drive. Police said both men were driving on Paradise Drive when a traffic conflict broke out.

“Police said Simon pulled into his driveway off Paradise Drive and into his garage, with Osenton trailing behind him. As the garage door closed, it struck Osenton’s Mercedes.

“Simon allegedly retrieved a .357-caliber revolver, fired one warning shot into the hillside across from his home, then shot Osenton two times in the abdomen.

“Police subsequently seized 50 guns, 200 boxes of ammunition and numerous magazines from Simon’s home. The items remain in police custody, as does Osenton’s car, which is being held pending examination by the defense.”

So, what does this unseemly example of road rage have to do with golf?

Apparently, Mr. Osenton is a golfer and is a member of the Meadow Club, described in the aforementioned news report as “Marin County’s most exclusive golf club.”

According to Dr. Simon’s defense attorney, Mr. Osenton is reputed to have quite a temper, which he believes he has displayed at the Meadow Club. Apparently seeking to bolster a claim that Dr. Simon acted in self-defense when he shot Mr. Osenton, defense counsel sought to require the club to produce records regarding Mr. Osenton:

“Seeking to discredit Osenton, Simon’s defense attorney subpoenaed Osenton’s records at the Meadow Club… The defense attorney, Charles Dresow, said he had information that Osenton, a 69-year-old Tiburon resident, has a history of aggressively confronting other members and damaging club property in ‘fits of rage.’”

The club objected, the judge reviewed the records privately, and determined they contained nothing relevant.

However, according to GHIN, Mr. Osenton, carrying a 10.7 handicap index, indeed may have been injured fairly seriously. He has entered no scores since July.

By: Rob Harris

Residents living near San Diego’s LaCosta Resort & Spa retained the California Fire Lawyers to do what they do best.

Claiming on its website to “have represented over 1,600 home owners, renters, farmers, avocado growers, and business owners who have lost property and suffered noneconomic damages as a result of fire,” the law firm recently filed suit against the resort, claiming it was responsible for a fire that began near its seventh hole and which allegedly caused extensive property damage as well as injuries.

The lawsuit asserts that the resort was responsible for starting the fire by virtue of negligent maintenance and operation of its property and equipment, and by failing to safeguard against the fire spreading into neighboring residential communities.

As for the precise cause? Well, that has yet to be definitively determined, although a leading theory holds that a golfer and his titanium club may be responsible.

According to a report at the time of the fire:

“Dominic Fieri, an investigator with the Carlsbad Fire Department, dismissed all ‘natural’ causes for the fire.

“After ‘crawling around on hands and knees,’ Fieri ruled out lightning or a mulch pile bursting into flame.

“The course’s irrigation system, the only immediate source of electricity, showed no evidence of having kick-started a fire.

“As for arson, a viral suspicion on that infernal spring day, Fieri found no evidence of an incendiary device.

“‘Based on the location of the fire’s origin, and interviews conducted by the Carlsbad police,’ he wrote, ‘I have ruled out any fire causes that resulted in a deliberate act of circumstances in which a person ignited the fire.’

“That leaves Fieri with only one explanation he could not reject out ofhand — a ‘smoldering ignition source that had direct contact with combustible materials.’

“Given the starting point on a golf course, Fieri concluded that the blaze may have been started either by a burning cigarette or cigar (though he could find no physical evidence in the windy, charred ignition area) or a spark created by a ‘titanium golf club head’ hitting a rock.”

Just imagine if La Costa could identify the golfers playing the seventh hole at the time the fire began. A new defendant could be brought into the lawsuit. As if this game weren’t torture enough already.

By: Rob Harris

As reported:

“A Knoxville teenager had his golf clubs stolen from his garage, and it was all caught on camera. The golf clubs meant a lot to the family because they belonged to the boy’s father who died from brain cancer last year.

“After 6 News aired the footage last week, the family says they got an outpouring of support from our viewers who helped identify the suspect. The night after the story aired, the man returned the clubs when the family wasn’t home.”

Happy ending notwithstanding, the victim and his family still seek to have the perpetrator prosecuted.  That may prove eminently do-able, since a suspect has been identified by those who have seen the videotape.

By: Rob Harris

Those buying a home next to a golf course usually face, as their biggest threat, the intrusion of an occasional errant golf ball. Brian and Trost wish they were so lucky.

They purchased a home overlooking Missouri’s Whitmoor Country Club, and soon discovered the house was infested with brown recluse spiders–more than 4,500 of them according to one expert. Their sad saga can be read here.

By: Rob Harris

We posted last month that San Juan Hills Golf Club is taking the city of San Juan Capistrano to court, claiming that it is unlawfully draining the golf course’s underlying aquifer of water the course needs for its purposes.

A few days ago, Judge Peter Wilson decided that the city’s actions are okay, at least for the time being. The issue will be revisited when the case is reached for trial, or, in the words of Judge Wilson, “if tomorrow the seventh fairway bunker falls into a sinkhole because water was coming out from underneath.”

While the judge was sympathetic to the club’s argument that it has legal rights to the water, he determined that the club has failed to show that it will be irreparably harmed if the city’s sharing of the course’s water continues until next year’s trial.

By: Rob Harris

We have had occasion to report multiple times (here and here) on the legal travails of Connecticut company “Hole-in-Won” and its owner Kevin Kolenda. Faced with charges, including felony counts, for failing to honor hole-in-one contest contracts, “Hole-in-Won” has adopted a marketing strategy that, well, can only be described as unusual.

Hole-in-Won is distributing what appears to be an attorney’s claim that in 2005 another hole-in-one contest insurer mishandled a contest and the resulting claim by a hole-in-oner. The desired implication, I suppose, is that the competitive insurer is less than reputable and those seeking a quality provider should sign up with Hole-in-Won.

OK, if they say so.

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