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

Larry Rose allegedly was injured in October 2008, while riding in a cart at New York State’s Tee-Bird Golf Club.  According to the court that recently allowed his lawsuit to proceed, “on a steep and winding section of the paved golf cart path that allegedly was covered with wet leaves, the cart skidded and flipped over, resulting in plaintiff being injured.”

Tee-Bird argued that the court should dismiss Rose’s lawsuit, relying on legal precedent holding that ”golfers are deemed to assume the risks of open topographical features of a golf course” … and they are “held to a common appreciation of the fact that there is a risk of injury from improperly used carts.”

Rose, however, convinced the court that his lawsuit should continue, claiming that there were external factors at play. As the court explained:

“Although plaintiff was an experienced golfer, he had not previously played on this particular course. He claimed that he was driving slowly and cautiously when the car simply slid out of control on wet leaves. Defendant acknowledged that the golf course path where the accident occurred was steep and winding. While defendant disputes the amount of wet leaves that plaintiff contends were on the path, it is uncontested that there were leaves present and that defendant’s employees had inspected the area earlier in the day. Significantly, plaintiff produced proof via the testimony of the person with whom he was golfing that,after the accident, he observed that the tires on the golf cart were ‘bald.’”

Although Tee-Bird disputed that the tires were in bad repair, the court held that issue was one of material, disputed fact that would need to be addressed at trial. According to the court, “a golf cart with bald tires rented to someone unfamiliar with the course on a day when wet leaves covered a steep and winding section of the cart path could create a situation where the occupants of the cart were exposed to a hazard beyond the normal dangers associated with golfing in such conditions.”

Thus, at least for now, Mr. Rose’s claims remain alive.

By: Rob Harris

In late 2012, an entity known as Stuck in the Rough LLC acquired, and shortly thereafter closed, the former Escondido Country Club. The plan? Turn the land into a housing development.

Not surprisingly, resistance emerged. The Escondido Country Club & Community Homeowners Organization was formed with one stated purpose:  ”To prevent conversion of county club property into a housing development with as many as 440 new homes.”

The city responded to a neighborhood petition drive by declaring the land permanent open space. The owner, complaining that the city should have put the matter to a public vote, brought suit.

Meanwhile, purportedly taking care of its open space, the owner spread chicken manure over several fairways. The neighbors alerted the Air Pollution Control District, who sent an inspector out to…. well, inspect. And inspect he did.

According to Inspector Mesplay, “I could smell it yesterday quite strongly by the fence line, and then today I was granted access behind a house and had a Level 5 odor coming right off the fairway. Level 5 is bad. Level 5 will just about make you gag.”

Responding to the city’s announced plans to cite the owner for public nuisance, the owner claimed that it is utilizing “an industry-standard landscaping program,” but did announce that a less-odorous fertilizer will be used in the future.

“A Lakewood man is accused of setting fire to the garage of a family member’s Westlake home after police said he damaged furnishings with a golf club, swung the club at relatives and fought with officers at the scene.”

You can find the story here.

By: Rob Harris

A New York City McDonald’s faced a dicey public relations dilemma this past winter when it sought to “evict” a group of elderly Koreans who had turned the restaurant into a daily hangout. Purchasing a cup of $1.09 coffee, the crowd made a full day of it, occupying a sufficiently large number of tables so that paying customers could not find a seat to scarf down their Quarter Pounders. Eventually, a compromise was reached, but not before the displaced elderly and their supporters launched a boycott marked by tasty sound bites such as “Senior citizens should not be treated as criminals. They should be respected.”

Thirteen retired Pacific Grove, California city employees recently found themselves as the golf equivalent center of attention. For thirty-five years, Pacific Grove offered retired city employees free golf on the municipally owned Pacific Grove Golf Links. However, when the city sold the course to a private operator, the freebie went bye-bye, leaving thirteen retirees sufficiently angry to file suit.

The city and the golf course operator, perhaps recognizing they would be hard-pressed to win the public relations battle even if they pulled out a victory in court, caved, restoring the retirees to their benefit. The city, however, did eliminate free golf prospectively, so future retirees may choose to spend their days drinking coffee in a nearby McDonald’s

 

By: Rob Harris

A federal appeals court issued a decision last week that provides a cautionary reminder to banks and other golf course financers who believe acres of beautiful land provide sufficient collateral even if the golf course venture proves unprofitable.

United States Steel developed an Alabama subdivision, called Heatherwood, in the 1970s. The court described the project as follows:

“The centerpiece of the subdivision was an eighteen-hole golf course. The plat maps for the subdivision=s first three sectors showed a golf course at the heart of the subdivision and indicated that all the subdivision=s roads would have golf-themed names, such as ‘Masters Lane’ or ‘Oakmont Road.’ The first set of general covenants, restrictions and easements for the subdivision also referenced a golf course, requiring each residential lot to have a ‘golf cart storage area’ and barring fences ‘adjacent to the golf course fairways, tees or greens.’”

In 1999, certain subdivision homeowners and others grouped together to buy Heatherwood Golf Club from U.S. Steel. After a period of time, these individuals sold the Club, as a result of which an entity called Heatherwood Holdings, LLC took title. Needing funds to pay for renovations, Heatherwood secured a $4 million loan from First Commercial Bank, for which it provided the bank a mortgage on the golf course property.

Unfortunately, the golf club did not fare well under Heatherwood, and it eventually filed for bankruptcy. Heatherwood, together with the Bank, seeking to recoup its loan, found themselves confronting an obstacle to liquidating the collateral. The Bank made its $4 million loan with the expectation that the land could be turned into a residential development. After all, there was no formal deed restriction that limited the use of the property to a golf course.

The residents of the Heatherwood subdivision, however, objected, seeking to preserve the land for use as a golf course.

In its recent decision, the appellate court affirmed the bankruptcy court’s finding that the property was subject to an “implied restrictive covenant,” precluding its development. As the court noted,

“USX recorded numerous plat maps which identified the property as a golf course and listed the names of the roads in these maps, all of which were derived from the names of golf courses and tournaments. Moreover, the deeds to each residential lot in the subdivision makes  reference to the various covenants and easements which note that the Heatherwood subdivision is a planned residential and golf community. The deeds required owners of residential lots to construct a golf cart storage area and prohibit the construction of a fence on those lots adjacent to a fairway, tee or green on the golf course property. Prospective lot purchasers were told that every homeowner must be a member of the Heatherwood Golf Club. USX created various marketing materials highlighting the benefits of living in a golf course community and erected a sign at the entrance of the development noting that the Heatherwood subdivision is a ‘golf course community.’ Notably, the community was used exclusively as a golf course community since it began operating in 1986. Lastly, based on testimony from witnesses, the bankruptcy court determined that most, if not all, Heatherwood homeowners were induced to buy based on the inclusion of a golf course in the subdivision and that USX always intended for the Heatherwood subdivision to be a golf course community.”

Accordingly, the bank found itself with rights to golf course collateral at a value that fell short of the amount of its debt.

Message to lenders: be darn sure about the uses to which you can put your collateral, just in case the borrower can’t meet its obligations.

 

By: Rob Harris

Quite a few professional golfers decided to forego the completion of their formal high school education, preferring to spend their days in pursuit of fame and fortune. Neither Kevin Na, Sean O’Hair, Justin Rose and my home town golf celebrity Bobby Mitchell (I mean, how many golfers beat Jack Nicklaus in sudden death at the Tournament of Champions) made it all the way to their senior prom.

If Meadow Lands golf course in Phoenixville, Pennsylvania has its way, hundreds of students–elementary school students, no less–will have their education curtailed due to golf.

Meadow Lands happens to be the place that the Phoenixville Area School District identified as the ideal location for its new early learning center and elementary school. The new facilities are needed, according to the District, because the existing schools cannot accommodate the growth of the young student population. Without the new school, the student population will exceed capacity by at least 143 as of the 2016-17 school year.

Meadow Lands is not necessarily averse to turning over the keys to the course in furtherance of education. However, it wants $8 million to do so, while the school district’s offer is $5 million. Seeking help from a third party of the black-robed variety, the school district has commenced an eminent domain proceeding. The next hearing date is scheduled for May 16–prime time for golf and end-of-school-year festivities. Stories about the dispute can be found here and here and here.

By: Rob Harris

On March 18, Judge Eileen Brantsten, overseeing Vijay Singh’s case against the PGA Tour, met with the attorneys for purposes of establishing a case management schedule.

Observing that “the parties can accomplish the discovery in a SHORTER period of time” than the time frames suggested by the attorneys, Judge Brantsten  established a discovery and deposition schedule that calls for the parties to designate the case ready to be assigned to a trial list by August 31, 2015.  Notably, she indicated that “dispositive motions” by September 30, 2015.

“Dispositive motions,” most notably summary judgment, will enable the parties to set forth in publicly filed documents the results of their discovery effort. In other words, Vijay’s attorneys will be able to discuss the inside information they gather about the Tour’s application of its drug enforcement policy as it relates to other players, information that the Tour likely prefers not to be publicized.

The court’s scheduling order thus gives those who care about such things data points to forecast when this dispute will settle. The parties either will reach a resolution shortly, before the discovery effort takes off in earnest, or, if they start down this path, settlement likely will occur between July and September 2013, after discovery is complete but before Vijay would otherwise go public with the information he has gathered.

By: Rob Harris

The Tennesee Court of Appeals issued a decision last week that serves to remind litigants and their attorneys of the dangers of overreaching on legal arguments.

Tennessee has a statute that permits the prevailing party in tax disputes to recover their attorneys’ fees. As we all know, attorneys’ fees can be substantial.

Five Oaks Golf & Country Club was not pleased that the state assessed sales and use tax on initiation fees and members’ monthly dues. The club grudgingly paid the tax and filed a claim for refund in the amount of $208,581.00, plus interest.

Five Oaks made two arguments. First, the club asserted that, under Tennessee law, the initiation fees and monthly dues were exempt from sales tax. Second, the club argued that, even if subject to tax, the statute of limitations precluded the state from assessing taxes on sums received by the club between January through November 2004.

After the state filed a motion to dismiss the club’s arguments, Five Oaks conceded to the court that the exemption argument was not meritorious. The court, therefore, dismissed this claim, but thereafter ruled in favor of the club on the statute of limitations issue, resulting in a refund of $61,887.00 plus interest.

The club, proclaiming that it was a prevailing party, sought to recoup the attorneys’ fees it expended in pursuing its tax appeal.  Confronted with the fact that it effectively lost on its exemption argument, the club argued that, by “conceding” the argument, the court did not effectively rule against it on this issue.

Although the trial court agreed with Five Oaks, the Court of Appeals disagreed, finding that  ”each party won one issue. Each received substantial relief. Consequently, we find that there is no prevailing party and reverse the award of attorney fees to Five Oaks.”

By overreaching initially, including a claim that had no merit, the club lost the opportunity to have its attorneys’ fees paid by the state. Message to parties and their lawyers: throwing the kitchen sink at a dispute is not always wise.

 

By: Rob Harris

A recent judicial opinion had occasion to discuss a 2004 Massachusetts case arising out of Crestview Country Club‘s loss of its “Poltergeist Tree,” a large ash tree.

Similar to Augusta’s famed “Eisenhower Tree,” lurking over the 17th hole, the Poltergeist dominated the left side of Crestview’s 13th. As the court described it, “the tree had stood seventy-five feet tall, had branches that overhung the fairway and was approximately two hundred and ten yards from the tee box in the anticipated landing zone of a typical tee shot.”

Also similar to the recent demise of the Eisenhower Tree, the Poltergeist fell victim to storm damage. And, again like the recent angst at Augusta, Crestview presented the court with the views of experts that “the loss of the tree has changed the thirteenth hole’s ‘character, challenge, rating, slope and psychology.’”

Crestview sought economic solace in an insurance policy that provided protection under certain circumstances for “direct physical loss or damage to golf course grounds.” According to Crestview, “the change in the slope, rating and character of the thirteenth hole is indeed a ‘direct physical loss or damage to the golf course grounds.’” The club argued that “since the Poltergeist Tree was an obstacle at the thirteenth hole… its removal caused a substantial alteration of that hole.”

Characterizing Crestview’s arguments as “creative [but] not persuasive,” the court held that the policy’s definition of “‘physical’ must be given its plain meaning — e.g., ‘material’– and an intangible loss in value of a golf course because of a change in its slope rating, difficulty, etc., does not fit within this meaning. Moreover, in this court’s estimation, the ‘character’ of the course is not part of the policy’s definition of ‘golf course grounds.’”

Alas, for Crestview, its attempt to have the insurance company pay for the redesign of the hole failed, and it was left only with the ability to recoup the minimal cost of the tree removal.

By: Rob Harris

Greg Norman blaming the Royal & Ancient and the European Tour for poor treatment because of a dispute between his sponsor Omega and competing watch manufacturer Rolex, has announced he will no longer play in the British Open. Read the story here.

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