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

In 1994, David Smalley bought a house that was situated adjacent to the Stowe (Vermont) ski resort. The deed provided that, if the resort owner sold land withing 200 feet of Mr. Smalley’s lot, the purchasers faced restrictions on the use of the property. In particular, the were not allowed to use the property “for the purpose of any . . . business or . . . place of public resort.”

In 2003, the resort owner transferred nearby properties to affiliated companies who, surprise of surprises, proceeded to build a golf course. Portions of two holes were within 200 feet of Mr. Smalley’s property.

Smalley, presumably disturbed by the presence of nearby golfers, brought suit, claiming that the resort violated the deed restrictions. In effect, he argued the deed was intended to create a 200 foot resort-free buffer. He asked that he be granted an injunction.

The resort had a different view, argued that the deed, “[c]onstrued as a whole, . . . evinced a clear and unambiguous intent to establish a common scheme to maintain the quality of lots sold by [the resort] to third parties for residential development,but there was never an intent to bar the resort itself from developing the property it retained.”

Mr. Smalley prevailed at the trial court level. The Vermont Supreme Court, however, reversed, sending the case back for reconsideration. The second time around, Mr. Smalley lost, and his defeat was just affirmed by the Vermont Supreme Court.

So, Mr. Smalley will continue to have golfers in the neighborhood. Some might advise: if you can’t beat them, join them.

By: Rob Harris

Advice to those seeking a partner at this year’s Member-Member tournament: Look beyond the usual. It’s not enough to focus on game, intensity, putting under pressure, camaraderie. Be sure you pick a partner who won’t get carted off mid-round by the police.

Thanks to Harvey Silverman for bringing to our attention the saga of futures trader Robert Scott Wiens. Mr. Wiens, who according to GHIN carries a 15.9 handicap index out of Colorado’s Omni Interlocken Resort Golf Club, was recently indicted on 19 counts that included charges of securities fraud, theft and forgery.

The authorities were so eager to administer justice that they arrested Mr. Wiens while on the golf course. The news report is silent as to whether a sufficiently prompt bail hearing was arranged to permit completion of the round.

By: Rob Harris

In 2006, James Doroshow forked over $100,000 for a “full equity membership” in a California country club that the California Court of Appeal has chosen not to identify in an opinion released earlier this month.

According to the court, in January 2012, Mr. Doroshow was expelled from the unnamed club “by a [board of directors] vote of 11-0, with one abstention.” The club arranged for the sale of Mr. Doroshow’s membership at a reduced price, and he received $10,000.

Mr. Doroshow brought suit against the members of the board, asserting that the club’s actions constituted a host of claims, including conversion, defamation, intentional and negligent infliction of emotional distress, trespass to personal property, negligence, and intentional and negligent interference with contractual relations.

The trial court ruled in favor of the board members, holding, without the benefit of a trial, that “the process for expelling Plaintiff from the Club ‘does not have to be perfect; it has to be fair and the court finds that it was.’” The trial court’s decision has been reversed on appeal, with the Court of Appeal holding that there are disputed issues of material fact that will need to be sorted out at trial.

Among the factual claims are the following, as set forth by the court in its opinion:

Three alleged rule violations preceded Plaintiff’s expulsion from the Club. In July 2011, Plaintiff was involved in an altercation with another member, Drew Grey. The incident began on the golf course and spilled over to the Club patio, where Grey continued to verbally assault Plaintiff and his guests while they dined. After repeatedly asking Grey to stop, Plaintiff momentarily held Grey against a wall with his hand on Grey’s chest. Grey filed a complaint with the Club, which the rules committee investigated. After completing its investigation, the committee notified Plaintiff that it would hold a hearing concerning the alleged incident. The committee did not provide Plaintiff with a copy of Grey’s written complaint. Plaintiff nevertheless attended the hearing and had an opportunity to present evidence. Both Plaintiff and Grey received 90-day suspensions for the incident.

Following the Grey incident, Defendants took a secret vote to expel Plaintiff from the Club. At the time, Defendants concluded they did not have “a sufficient ‘paper record’ ” to take the desired action. Plaintiff maintains Defendants thereafter conspired to “fabricate reasons” to justify his expulsion.

In December 2011, another member, Michael Prince, submitted a written complaint to the rules committee alleging that Plaintiff intentionally hit a golf ball in his direction, endangering his personal safety. Plaintiff and other members stated Prince hit an errant shot from the fourth fairway onto the fifth fairway where Plaintiff and his group were playing. Before Plaintiff saw Prince, who was several hundred yards away attempting to retrieve his ball, Plaintiff hit a shot from the fifth tee. Though Plaintiff had no intention of endangering Prince, Plaintiff’s shot landed near him.

The committee investigated the incident, interviewed witnesses and reviewed Plaintiff’s written statement concerning the matter. The committee then notified Plaintiff that it had scheduled a hearing to address Prince’s complaint. Plaintiff did not receive a copy of Prince’s written complaint in advance of the hearing.

Despite notifying Plaintiff that the hearing would be limited to the Prince incident,the rules committee also questioned Plaintiff concerning his alleged violations of the Club’s rules regarding the use of cell phones. Plaintiff explained to the committee that,due to the recent untimely death of his wife, the Club’s general manager had given him permission to use his cell phone in emergencies to speak with his children.Notwithstanding the accommodation, and Plaintiff’s subsequent showing that the triggering phone call had been from his son concerning a car accident, the committee suspended Plaintiff for a total of 120 days for the Prince incident and cell phone violations.

On January 17, 2012, the rules committee submitted a memorandum to the board of directors detailing the foregoing rule violations and recommending Plaintiff’s expulsion from the Club. Plaintiff received a copy of the memorandum and written notice that the board would consider his expulsion at a subsequent hearing. The notice advised Plaintiff that he was “invited to appear [at the hearing] to present any evidence or reasons as to why [he] should not be expelled.”

In advance of the hearing, Plaintiff submitted a written statement and petition by several Club members opposing his expulsion. In communications preceding the hearing, Defendants called Plaintiff a “liar” and referred to him as a “poster boy” for cellphone violations, notwithstanding the accommodation the Club’s general manager had granted to Plaintiff.

Mr. Doroshow claims that he was unfairly expelled, especially when his conduct is compared to two members who “deliberately struck a golf ball at another member’s wife,” but received only a thirty day suspension due to their friendship with a member of the board.

China is a big country with a big population that does things in a big way. Like shutting down golf courses by the dozens.

With a story entitled “China Cracks Down on Golf, the ‘Sport for Millionaires,’”, the New York Times reports that the government has acted forcefully in an attempt to address what it perceives to be golf-related corruption

“A Florida golf pro is suing American Airlines claiming he was severely burned when a flight attendant spilled a cup of hot water onto his leg during a flight last year out of Portland.”

Read more here.

By: Rob Harris

We wrote the other day about Titleist’s patent infringement suit against a number of companies, including Kick X Golf Corporation.

Well, Kick X may or may not be a patent infringer–that obviously remains to be determined–but the company without doubt is a great marketer.

Kick X has found a way to leverage its status as a defendant with a press release praising its product. After acknowledging that “the Titleist lawsuit alleges that the dimple pattern on the Kick X Tour Z golf balls violates the pattern patented by Acushnet Company,” the press release goes on as follows:

“We understand why they are targeting us as we are a longer premium ball and one of the fastest growing brands on the market,” said Bob Koch, chief executive officer of Kick X Golf.

“The TourZ is Longest Premium Ball on the Market

“In an independent comparison conducted last summer at the highly respected Golf Laboratories, Inc. testing site in San Diego, the Kick X TourZ outdistanced the best premium balls from Titleist including the Titleist Pro-V1 and the Titleist Pro-V1x golf balls.

“The Kick X TourZ ball features a Metal Fuzion Core™ that creates an exceptionally high coefficient of restitution-the spring effect found in premium golf balls-thanks to a fusion of three proprietary metals that concentrates mass in the center of its core, which allows the ball to rebound more quickly when compressed at impact, producing additional launch speed and distance. An aerodynamic cover provides unmatched accuracy on tee shots, exceptional spin control on approaches and triple-layered construction that’s engineered to deliver a soft, superior feel around the green.”

Buy ‘em fast, cause if Titleist has its way, they may not be on the market for long.

Thanks to Harvey Silverman for sharing this.

By: Rob Harris

Golfers get enough of a bum rap about not being finely tuned athletic machines playing a “real” sport. Had Robert Germano prevailed in his lawsuit against American Golf Corporation, operator of LaTourette Golf Course on New York’s Staten Island, the perception might have been reinforced.

It appears that Mr. Germano suffered serious injuries while playing at LaTourette. His lawsuit, however, sought to hold the golf course operator liable for leaving clumps of wet grass on the golf course.

As a New York court recently explained in denying Mr. Germano’s claim, “plaintiff maintains that when he stepped out of the golf cart and began walking down hill towards his ball, he tripped and fell on a clump of wet grass that purportedly was left on the fairway after the grass had been cut. In essence, plaintiff argues that by cutting the grass while it was still wet, clumps of slippery grass were allowed to form on the fairway, thereby creating an unexpected danger for golfers playing the course.”

The court, however, rejected Mr. Germano’s claim, holding that the operator could not be held responsible for Mr. Germano’s misfortune. As the court held:

“the evidence presently before the court indicates that plaintiff was aware that the grass on the course was wet on the date of the subject accident. In fact, plaintiff admitted that the course was “saturated”, and “like a sponge”. As a result, it would be apparent to any experienced golfer such as plaintiff that the wet conditions existing on the course would operate to increase the risk of slipping. …[G]iven the undisputed testimony that a hurricane had struck the area only two or three days previously, it should have been perfectly obvious to even a novice golfer that the course would present less-than-optimal playing conditions on the day of the accident … Nevertheless, plaintiff proceeded to play 12 holes of golf despite the obviously wet and soggy condition of the course before reaching the 13th fairway. Under these circumstances, given his level of experience, plaintiff must be deemed to have accepted personal responsibility for any increased risk of injury posed by the condition of the course…. Being familiar with the topography of LaTourette, and having been forced to wait until defendant’s employees finished mowing the 13th fairway before resuming play, plaintiff will not be heard to disavow this knowledge, or the increased potential for slipping or tripping on matted clumps of wet grass that were likely to have been left behind by the mower.

“Furthermore, there is a dearth of evidence that any clumps of grass that may have been laid down by the mower presented such an unusual or unique condition to golfers, especially one who had witnessed the mowing, to constitute either a trap or hidden danger for which defendant may be held liable… Nor has this happenstance been shown to present such an extreme aberration as to be unforeseeable by golfers playing in the wet, It is well known that the game of golf is played outdoors, typically on uneven terrain composed of various hills, slopes, and depressions; that different parts of the course are covered with grasses of varying lengths; and that the condition of the course is continuously affected by the weather. In addition, it is well known that the grass clippings generated by mowing are permitted to fall to the ground. Thus, golfers can expect to encounter an assortment of conditions, including thunder storms, whose commonly appreciated risks they are deemed to assume by choosing to play. …

“Finally, plaintiff’s mere assertion that slippery clumps of matted grass may form on a wet golf course as a result of mowing is insufficient to demonstrate that their presence constitutes a trap or a snare. In the absence of any supporting evidence, plaintiffs claim that such conditions are beyond the scope of the risks inherent in playing golf in the wet represent pure speculation, conjecture or surmise, none of which will suffice to defeat a motion for summary judgment.”

Many thanks to Joe Laird, attorney at Wilson Elser, who claims to be “a devoted follower of your LinkedIn group and website” (Joe, you have to find a better use of your time!!), for bringing this decision to my attention.


By: Rob Harris

Titleist includes Jordan Spieth among its stable of players using its Pro V1x golf ball.  When  the endless winter indeed ended, and I teed up one of those babies on Saturday, little did I know that what made the ball in my hand so special was a ”triangular dipyramid dimple pattern.” Now I (and perhaps Masters Champ Spieth) know.

Titleist’s owner, Acushnet, has filed suit against nine companies, accusing them of violating it patented dimple design that ”reduce[s] both lift and drag, causing the ball to fly along a more penetrating ball flight.”

According to  Titleist, ”for an optimal golf ball trajectory, the goal is to develop a ball with an optimal balance of lift and drag forces, not merely to minimize drag while maximizing lift. A ball that simply maximizes lift risks flying too high, which can cause reduced accuracy and possibly reduced distance.”

The lawsuit seeks an injunction and damages from nine companies that allegedly sell golf balls with 318 dimples using the patented triangular dipyramid dimple pattern:  Zimventures LLC dba 3 Up Golf; Dixon Golf Inc.; Kick X Golf Corporation dba Kick X Sports; Lightning Golf; Monsta Golf LLC; Rife Golf; Vail Roberts LLC dba I Need The Ball; Vice Sporting Goods GmbH dba Vice Golf; Nexen Corp. dba Saintnine; and Ariva Golf.

Those possessing one of the allegedly infringing balls may wish to count the dimples. Or try to qualify for the Masters.

By: Rob Harris

The doom and gloomers proclaiming golf is a dying industry may want to pay attention to a zoning objections registered by Westlake Golf and Country Club against a prospective new neighbor.

Westlake is a 55 and older adult community. The prospective new neighbor is Oliverie Funeral Home.

Westlake residents have expressed the following concerns“It’s a constant reminder of death,” “it just reminds you that, you know, you don’t have that much time left,” and “that they’re gonna roll us across the street over to the funeral home.”

The local zoning board has approved the project, with approvals from the county and state still to be obtained.

By: Rob Harris

According to a published report, Bob Carson, who had the contractual right to operate Brooksville, Florida’s Quarry Golf Course, took a page from The Producers.

He is alleged to have sold the golf course management rights to two separate investors, taking down payments from both.

The claimed misconduct, however, doesn’t stop there. One of the purchasers, the one who actually started operating the facility, was dismayed to have received only $55 in receipts on day one, after Carson had told him the course generated annual revenue of $85,000 to $1335,000. He also allegedly misrepresented the duration of the operating lease as “up to 20 years,” when only two years remained. He discovered that workers had been paid under the table, and bills had not been paid, including several thousand owed for golf carts.

Without seeming too harsh as to the victims, one question does emerge: Does the phrase “due diligence” mean anything to you?

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