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

Local property taxation often presents issues of push back and negotiation, as property owners and taxing authorities wrestle over the appropriate valuation of property. With acres of green space and the business operations of pro shops and dining facilities, the issues surrounding the taxation of golf clubs can be complicated and, sometimes, contentious.

Two stories report property tax issues involving famed clubs.

On New York’s Long Island, the boundaries of the Tuckahoe School District surround an all star list of clubs–Sebonack Golf Club, National Golf Links of AmericaSouthampton Golf Club and Shinnecock Hills Golf Club. The School District, for which New York taxpayers must earmark certain payments, is seeking detailed information from the Town of Southampton, as to how the clubs’ respective taxes are calculated. The Town has provided the bottom line numbers, but is resisting providing the documentary backup, leading the School District to file suit to gather this information. At this point, the School District is making no claims that the clubs are not paying their fair share, asserting only that they wish to review the relevant information.

Meanwhile, Chicago’s Medinah Country Club has negotiated a tax deal with local officials that provides tax certainty through 2016. Since the taxing districts have overall financial needs, the amount paid by Medinah can impact the amounts that homeowners must pay.

 

By: Rob Harris

Canada’s Deer Ridge Golf Club successfully defended a claim of discrimination brought against it by a club member who argued that he should not be required to pay for the cost of a golf cart.

The member, who for purposes of the case was deemed to be disabled by virtue of a broken ankle suffered in 2006, was an active golfer, playing 100 rounds between April and September, before heading off for more golf in Arizona during the winter. However, his injury precluded him from walking, and he asserted that, even though he was financially able to absorb the cart fees, the club was discriminating against him based on his disability by requiring that he pay for the cart. Instead, he argued, the cost of carts for him and others similarly situated should be borne by the entire club membership in the form of higher fees.

The claimant’s argument was rejected in a ruling issued by the Human Rights Tribunal of Ontario. According to the ruling:

“All players at the respondent club who use a power cart must pay to so; therefore, it is obvious that players, like the applicant, who always use a cart while golfing will incur higher expenses than those who do not, In my view, such higher expenses amount to a disadvantage. The applicant uses a power cart because his disability prevents him from walking; therefore, the disadvantage for the applicant is linked to a prohibited ground of discrimination. The jurisprudence is clear, however, that not all distinctions or disadvantages are discriminatory. In my view, the requirement for players at the respondent golf club to pay to use power carts does not amount to a substantive disadvantage for individuals, like the applicant, who must use carts because of a disability. There was no evidence that this requirement poses a barrier to players with disabilities. The only evidence before me was with respect to the applicant’s experience and he admitted that paying for power cart rentals did not prevent him from golfing, and indeed he plays quite regularly… The applicant agreed that he is fully able to enjoy golfing at the respondent club. Accordingly, the requirement to pay to use a power cart has not caused him to be excluded or restricted in playing golf. In these circumstances, I cannot find that the applicant has suffered a substantive disadvantage…”

By: Rob Harris

The owners of Virginia’s Battlefield Golf Club have sued utility company Dominion Resources, with whom the owners partnered for the construction of the course. The idea was to utilize a repository of coal ash–1.5 million tons–that was earmarked for disposal by the utility.

Years later,the groundwater tested positive for high levels of arsenic, chromium, lead, beryllium, manganese and zinc. Homeowners and others have sued Dominion Resources as a result. Now, the golf course owners have brought their own lawsuit.

By: Rob Harris

Even the best due diligence can’t forecast all scenarios.

In 2000, a group of investors purchased San Antonio’s Northern Hills Golf Club, with plans to hold the property until the expiration of a covenant, and then to sell it for what they believed to be its highest and best use as residential development property.

Neighborhood resistance to the plan surfaced… no surprise. The City Council deferred to the opposition and created a new zoning category, aptly named the “G” Golf Course Zoning District, which served to preclude the plans to develop the property.

Litigation followed….again, no surprise.

Now, with an upcoming trial, and the golf course owners proclaiming in full Texas voice that “the City’s rezoning of the Property constitutes a taking of Plaintiff’s property … in violation of the Constitution of the State of Texas,” the City is contemplating a purchase of the golf course.

According to a published report, there remains a chasm regarding the amount of the purchase price, but, hey, hope springs eternal.

A number of years ago, Harvard Law Professor Ben Edelman represented Vulcan Golf in a lawsuit against Google.

So, with an expansive definition of golf-related disputes, this story qualifies. Take my word, worth reading while munching on General Tso’s Chicken…or not.

Sigh.

As reported in the New York Post:

“Sheri Astrachan slapped her estranged real-estate-exec hubby, Matthew, with a $20 million defamation suit after he allegedly cut off her access to the tony Old Westbury Golf & Country Club and various credit cards.The move triggered a golf-club rule that Sheri’s name — and even the amount of her debt — be listed in its public places, including in its men’s and women’s locker rooms, “proclaiming for all to see that she had not paid her bills to the club,” says the spurned wife’s Manhattan Supreme Court suit.”

The full story can be found here.

By: Rob Harris

Many years ago, as a young attorney, I represented two individuals who claimed that they were deprived of a real estate development opportunity by the defendant’s improper actions in steering the opportunity to another investor. The expert witness engaged to calculate damages opined that, under market conditions existing at the time, the project could reasonably be projected to earn lost profits of a gazillion dollars. Then, the real estate market collapse of the late 1980′s occurred. Developers lost their shirts; banks failed.

Amid this maelstrom, my clients’ case worked its way through the court backlog and it was time for trial. The experts rosy projections of two years’ prior did not seem so solid. The attorney for the defendant asserted (seriously, not jokingly) that my clients should be grateful they (allegedly) were deprived of the opportunity.

Through it all, the expert stood his ground. Unlike every other development in the Northeast, he was confident this one–with features that others lacked–would have been a success.

A recent decision from a Rhode Island court brought this case to mind. Shareholders in an entity that had development rights to a golf course and assorted residential amenities alleged that, through various nefarious conduct, they were unlawfully deprived of an opportunity to acquire the investment. Among their claimed damages were the profits they would have / could have / should have received.

The court, however, was not impressed, rejecting the valiant effort put forth by plaintiffs’ expert witness, concluding that his damage theory was nothing more than a speculative house of cards that toppled for want of a solid foundation.

As the court explained,

“Plaintiffs contend their losses [include] the profits which could have been made by developing the Property. Specifically, the Plaintiffs point to lost profits from condominium sales, house lots, and revenues generated by a golf course, exercise facility, and restaurant…

“[Plaintiff's expert witness] Houle’s testimony demonstrates the amount of conjecture involved in formulating the Plaintiffs’amount of potential lost profits. In order to obtain a profit in this venture, Houle first assumed that certain construction permits from the Town of Hopkinton and the Rhode Island Department of Environmental Management (DEM) would be renewed within a short amount of time after the Plaintiffs purchased the Property… In the absence of any additional evidence that demonstrates the necessary permits could easily be renewed, Houle’s later determination of the Property’s value—which assumes all permits will be in place—is highly speculative… Further, Houle’s testimony regarding the amount of damages relies on several inferences. One such inference includes the Plaintiffs being able to obtain financing to complete development.

“Also, the Plaintiffs have not presented evidence, beyond conjecture, regarding what the costs of construction would be to fully develop the Property. Without evidence pertaining to construction costs and financing, Plaintiffs’ lost profits cannot be proven with reasonable certainty… Although Houle states that he is willing to testify as to the amount of profits a generic developer could make on this project, his assumption of a 20% profit is based on unsupported documentation… In fact, the underlying information used by Houle in creating his appraisal for the Property’s value once fully developed has been destroyed.Consequently, Houle’s testimony regarding the estimated profits to be made from developing the Property was made from his memory and recollection… Therefore, the Court is unable to ascertain whether Houle’s estimates are based on articulated facts or mere speculation…

“In summary, the Plaintiffs have not presented sufficient evidence to raise a factual issueof whether lost profits existed. Houle’s testimony, the sole source relied on by the Plaintiffs,does not create a factual issue regarding lost profits. To testify to lost profits, Houle would have to assume the price paid by the Plaintiffs for the Property, the terms of any financing to develop the Property, and lastly, the ability to sell all the developed residential lots… It is clear that absent further evidence, the testimony of Houle regarding lost profits is heavily grounded in a series of speculative events occurring.”

So it goes.

By: Rob Harris

Golf clubs that outsource management of the facility obviously need to be mindful of who they select.

The owner of North Carolina’s Forest Oaks Country Club, the former, long term host of the PGA Tour’s Greater Greensboro Open, outsourced operations to a company called ES2 Sports & Leisure. After about a year, members arrived to find a padlocked door and a note indicating that the management company had filed for bankruptcy.

Now, it is reported that the bankruptcy trustee has brought suit against the owners of ES2 Sports & Leisure, alleging that they siphoned company money for their personal use. The story can be found here.

By: Rob Harris

It appears as though Micah Bowman will need to find a new place to hit wiffle golf balls, as a California appeals court has upheld a lower court ruling that enjoins him from contacting, harassing, or coming within 50 yards of his neighbor.

Here’s the court’s take:

“The testimony presented to the trial court at the hearing indicated the parties live across the street from each other. In April and May 2013, Bowman repeatedly hit golf balls from his front yard across the street into Benavidez’s front yard; he then went into her yard and hit the balls back to his own yard. Sometimes the balls hit Benavidez’s car; when she protested, Bowman told her this is America and if she didn’t like it, she could leave…

“Bowman testified he hit the golf balls, which were wiffle balls, on his own side of the street to entertain his children; if any went across the street, he simply retrieved them…

“He admitted he told her he wanted to know her, stated he wanted to know what she considered her boundaries to be, and said, ‘This is America and we are free to play in the streets with our kids’.”

Well, according to the court, while this may be America, golf balls–wiffle or otherwise–have no inherent right to invade a neighbor’s yard.

By: Rob Harris

The Cooroy Golf Club website proclaims the availability of “affordable golf in a friendly, relaxed hinterland village setting.” Perhaps “yes” to “affordable” and “hinterland village setting,” but, at least for one patron, “friendly, relaxed” gets a resounding “no”.

As reported:

“A dispute over a golf ball has landed a man in court, after a fight on a Sunshine Coast course in October left an elderly man with facial injuries.

“The 76-year-old man needed treatment for bruises and abrasions after the punch-up on October 12 at the Cooroy Golf Club.

“Police allege there was an argument between the 76-year-old and a 46-year-old over who owned a ball on the course.

“Police claim the younger man ‘repeatedly punched’ the other player, who he did not know.

“Charges were laid over the weekend.

“A 46-year-old Sunrise Beach man was charged with serious assault and is due to face Noosa Magistrates Court on December 16.”

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