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 has more than 2000 members.

We also recently established a Twitter account (@golfdisputes). All twitterers are welcome to follow.

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

 

 

Here’s one of the occasional stories I just quote in its entirety.

Thanks to kutv.com:

A man was taken to Utah County Jail Saturday night after a fight broke out among golfers in Payson.

According to Lieutenant Bill Wright with Payson Police, around 8:20 p.m. Saturday night a group of four golfers were playing ahead of a 61-year-old Lee Johnson and his his wife. The man and woman thought that the group was going too slow and wanted to play through, but the group did not want them too.

Wright says a fight broke out and the club house was called out and resolved the dispute.

Around the ninth hole, Johnson and his wife caught up with part of the group and thought they would be allowed to play through, but again the group refused.

Johnson then pulled a pocket knife and stabbed one person, Wright said. He was wrestled to the ground by the other golfer from the group.

According to Wright, one man received a small cut. Wright said the victim was sent to Mountain View hospital with non life-threatening injuries.

Johnson was taken to the Utah County Jail.

Authorities say Johnson’s wife was not involved with the stabbing and was not arrested.

 

By: Rob Harris

Recent years have seen an increasing number of disputes between golf clubs and adjoining landowners, as clubs have pursued alternative uses of their land in the face of declining club membership.

Now comes a report of an alliance between a club and its neighbors–a comraderie perhaps more in the nature of “the enemy of my enemy is my friend.”

Georgia’s Jones Creek Golf Club has filed suit against the county government, seeking to force control of upstream stormwater and erosion which has caused silt buildup and resulting flooding of Willow Lake on the golf course and adjoining neighbors’ properties.

The story and video news report can be found here.

By: Rob Harris

In the Wizard of Oz, the Scarecrow’s quest for a brain met with a happy ending when the wizard explained that “why, anybody can have a brain.  That’s a very mediocre commodity… Back where I come from we have universities, seats of great learning – where men go to become great thinkers. And when they come out, they think deep thoughts — and with no more brains than you have…. But!  They have one thing you haven’t got!  A diploma!”

The North Carolina Court of Appeals recently took a somewhat different tack, relegating formal certification to the dust heap, at least when it comes to golf course valuation.  In a tax appeal regarding the Old North State Club, the local tax commission rejected the evidence of value offered by the club, for the reason that the testifying witness,  Christian Anastasiadis, was “not licensed as a certified real estate appraiser and holds no appraisal designations.” According to the tax commission, Mr. Anastasiadis’

“testimony and his discussion of the documents associated with revenues received, administrative expenses incurred, and the net loss for the subject golf course is not competent, material, and substantial evidence from which the Commission may find that the County employed an arbitrary or illegal method of appraisal, and that the tax values were substantially greater than the true values of the subject property as of January 1, 2012 when Mr. Anastasiadis is not a licensed real estate appraiser that is qualified as an expert to testify as to the market value of golf course property. As such, there is no competent, material, and substantial evidence to support his collective value…”

On appeal, the North Carolina Court of Appeals confirmed that the Commission dismissed Mr. Anastasiadis’ testimony “entirely because Anastasiadis was not a licensed real estate appraiser,” and held  ”the Commission’s rationale to be in error.”

As the court explained, Mr. Anastasiadis was “the Chief Operating Officer of McConnell Golf, an owner and operator of golf courses and the sole member-manager of Old North State.”

According to the court, “although evidence from a licensed real estate appraiser is surely sufficient, and perhaps best practice, there is no such requirement…. [I]t appears Anastasiadis, as COO of McConnell Golf, the sole member-manager of Old North State, is qualified to offer testimony as to the value of the subject parcels both as an officer and representative of the property owner… Moreover, based on the Commission’s summary of Anastasiadis’ testimony in its findings, if Anastasiadis’ testimony is considered, it appears Old North State has met its burden of production…. We, however, leave these ultimate decisions for the Commission’s determination upon proper application of the law. We reverse the Commission’s dismissal of Old North State’s appeal solely on the basis that the Commission erred in determining Anastasiadis’ testimony was not competent, material, and substantial evidence to rebut the presumption of correctness afforded ad valorem tax assessments because Anastasiadis was not a licensed real estate appraiser.”


By: Rob Harris

Golf Channel has provided us with an opportunity to experience a chance meeting in a Golf Galaxy parking lot.

By: Rob Harris

Over the past several years we have discussed many lawsuits involving golf course owners’ desires to transform the use of the property into something that will generate better returns (or avoid losses). Frequently, there is pushback from neighbors, from members, and from local governments.

I commend to those interested an article by Pat Clark at Bloomberg that discusses the issues raised by these disputes and market forces. As Clark explains:

“More than 800 golf courses have closed nationwide in the last decade, as operators grapple with declining interest in the sport and a glut of competition. Many of those shuttered courses were built on land proscribed from redevelopment by local zoning codes seeking to preserve open space—or…by deed restrictions intended to protect homeowners who had paid a premium to live near a golf course.

“That leaves some golf course owners with the real estate equivalent of an unplayable lie: They can’t make money running the course, and they can’t recoup their investment by selling it….

“In the face of declining interest and competition driven by oversupply, course owners have gone searching for ways out. Some have donated golf course land to nature trusts and local parks, taking a tax break in return for preserving the open space. Others have inked deals with homebuilders—though those deals are often contingent on winning approval from homeowner associations or local governments.”

The full article is available here.

By: Rob Harris

“Republican presidential nominee Donald Trump says his words shouldn’t always be taken at face value because sometimes he’s just negotiating.”

So begins a Bloomberg article on the commencement of the lawsuit brought by members of the Jupiter Golf Club who have sued to recoup their initiation fees.

The article reports that “a scheduled three-day trial got under way in West Palm Beach, Florida, Monday with a video deposition from Trump explaining why he told members who resigned that they would no longer be allowed to use any of the facilities at Trump National Golf Club Jupiter, although their contract said they could until they were paid back their deposits.

“’The letter said that, yes,’ Trump said in the video, played to the judge. Later in the deposition he said: ‘It’s called negotiation.’”

The full article can be found here, and a great background piece on the dispute authored by the New York Times’ Joe Nocera is available here.

By: Rob Harris

“Somewhere out along the 14th tee of the Boothbay Harbor Country Club, a couple is attempting to live their lifelong dream of owning a horse farm on the Boothbay Peninsula.

“While horse farms and country clubs manage to coexist in many places — indeed, many country clubs have bridle paths and equestrian facilities of their own — this particular marriage is not made in heaven.”

So begins a Wiscasset Newspaper article about  rights-of-way, a spite fence and the competing desires of the golf club and the owners of the horse farm to pursue their respective endeavors.

While litigation has commenced, the article advises that a mediation is scheduled for next week, so perhaps golfers and equestrians will soon be peacefully coexisting.


Chapter 11 can serve as a powerful weapon for a golf course owner facing economic pressures.

Here’s a link to an insightful article by Attorney Steven Werth that discusses how a bankruptcy filing can meaningfully alter the playing field.

By: Rob Harris

For a number of years, many golf clubs have faced challenges in maintaining a strong and vibrant membership base. Without a steady stream of new members, clubs have confronted holes in operating budgets and have had to resort to contractual rights and remedies to maintain revenues.

Sometimes, governing documents will permit departing members to recoup initiation fees only upon the entry of replacement members. Arguably even more draconian, certain clubs prohibit members from resigning until new members join. In those circumstances, recalcitrant members are faced with demands from clubs that they continue to pay dues.

Such is the situation at South Carolina’s Callawassie Island Club, where a South Carolina trial court in 2014 held that the club’s governing documents unambiguously required members to make such payments.

However, with a decision last week, the South Carolina Court of Appeals has reversed the lower court’s ruling, holding that. in fact, there is ambiguity in the documents, which must be sorted out in a full trial.

The Court noted that the 1994 governing club documents provide as follows:

“Any member may terminate membership in the Club by delivering to the Club’s Secretary written notice of termination in accordance with the By-laws. Notwithstanding termination, the member shall remain liable for any unpaid club account, membership dues and charges (including any food and beverage minimums).”

However, the court also noted the existence of other documents, including a 1994 Plan and Bylaws, which provide resigned members are obligated to continue to pay dues until their memberships are reissued. Further ambiguity is found is in the 2009 [governing club documents], which provide that members who have terminated their club memberships remain liable for unpaid dues until their membership is sold. The term ‘unpaid’ is not defined in the documents. It is unclear whether the language relating to unpaid dues refers to unpaid dues owed at the time of resignation or unpaid dues accruing before and after resignation. Thus, we find the evidence relating to the issue of whether Appellants were obligated to pay dues post-resignation, viewed in the light most favorable to Appellants, leaves a genuine issue of material fact for trial and, thus, precludes judgment for Callawassie as a matter of law.”

The court also found that a trial was warranted as to whether a resigning member’s dues obligation should cease after four months, pointing to this language in the governing documents:

“Any member whose account is delinquent for sixty (60) days from the statement date may be suspended by the Board of Directors. . . . Any member whose account is not settled within the four (4) months’ period following suspension shall be expelled from the Club.”

Acknowledging that expulsion does not necessarily correlate to a voluntary resignation, the court found there to be sufficient ambiguity to warrant a trial on this issue.

By: Rob Harris

Last Spring, we discussed a federal appellate court’s opinion that determined a claim for fraud could be asserted against Jack Nicklaus by a couple who lost $1.5 million in a golf course development that went bust. Although the real “evil doer” was the developer, the couple alleged that Nicklaus should be held accountable based upon statements in promotional literature that he was “so impressed with the club and its management team that I became a founding charter member.” The plaintiffs alleged that this statement was false in that it failed to reveal that Nicklaus’ received his founding membership gratis.

Armed with the preliminary decision that it could assert the claim, the plaintiffs returned to the federal trial court, where they were met with a motion for summary judgment which asserted that plaintiffs claims should be dismissed as untimely, in that they waited more than three years to assert them. On July 18, 2016, the court granted the motion, entering judgment in favor of Nicklaus. As the court observed,

on January 11, 2008, eleven days after investing $1.5 million in the project, [plaintiffs] discovered that Marc Jenson, known to them at the time as a “principal” of the Mount Holly Club”’was a “fraudster” with a “checkered criminal past.” …They also admit that on this date they were shocked to learn that Jenson had “past bankruptcies, civil cases, criminal cases, and a pending criminal case,” and became concerned that they had been “duped” into investing in a “fraudulent project.” … Plaintiffs admit that this discovery caused them to begin a further investigation into their investment in the Mount Holly Club. …  Based on these admissions, it is undisputed that the Donners discovered another misrepresentation or omission alleged in their cause of action for fraud against defendants by January 11, 2008; it is further undisputed that on this date, the Donners actually began investigating their investment.

Against this background, the court concluded that plaintiffs’ subsequent discovery of Nicklaus’ statements about being a founding member of the club would not afford them a reprieve of the requirement that they assert their fraud claim within three years. Accordingly, the court entered judgment in favor of Nicklaus, with no need to explore the substantive merits of the plaintiffs’ claim.

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