Bass et al v. Tour 18 at Rose Creek LP
ORDER; 8 For the reasons set forth herein, the Court concludes that Plaintiffs are not entitled to preliminary injunctive relief having failed to establish irreparable harm, the Court hereby DENIES Plaintiffs motion, as more fully set out. Signed by Honorable David L. Russell on 2/15/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANDY BASS, TRUSTEE OF THE
ANDY BASS FAMILY TRUST, et al.,
TOUR 18 AT ROSE CREEK, L.P.,
This matter comes before the Court on Plaintiffs’ Motion for Preliminary Injunction.
(Doc. No 8). 1 Defendants responded in opposition to the motion and Plaintiffs filed a Reply
in support of their request. Having considered the parties’ submissions, the Court finds as
Plaintiffs each owned a Master Membership at the Rose Creek Golf Course, having
purchased the same from either Defendant directly for $30,000.00 or from a Master
Member who obtained the membership directly from Defendant. Defendant unilaterally
terminated the Master Memberships effective January 1, 2017, via letter dated December
Due to numerous issues with the Master Members, Tour 18 at Rose Creek,
LP deems it necessary to terminate this agreement.
Pursuant to the last paragraph of the Masters Membership Agreement and
the Rose Creek Rules and Regulations Resignation of Membership, Tour 18
at Rose Creek, LP is hereby terminating the Master Member Program
effective January 1, 2017.
Plaintiffs also requested a Temporary Restraining Order. The Court informed the parties during its January 12,
2017, that no such order would be granted, leaving only the issue of a preliminary injunction for resolution at this
According to the last paragraph of the Master Membership Agreement, all of
the original members have been amortized out based on our old family
membership rate of $350.00 per month. July 15, 2009 through December 15,
2016 equals 89 months. 89 x $350.00 = $31,150.00.
The Master Member Agreement, which the parties agree were substantively identical for
each of the Master Members, provided for a $30,000 payment in exchange for certain
“lifetime” privileges at the Club. The agreement required that Tour 18 refund the entire
amount in the event it “should sell, transfer, or otherwise dispose of the Rose Creek Golf
Club, voluntarily or involuntarily.” Master Member Agreement, p. 2. The Agreement
contained the following provision regarding termination:
Should Member’s membership be terminated by Tour 18 at any point in time
pursuant to the club rules as established and published by Tour 18, Member
shall be entitled to a refund of his $30,000 less an amount equal to the number
of months he has been a member multiplied by the monthly family dues
members would have paid for a golf membership during the time period prior
to his/her termination.
Master Member Agreement, p. 3. Finally, Defendant submits what it alleges were the Tour
18 Rose Creek Rules and Regulations in effect at the time the Master Member Agreements
were signed. It includes the following, in the section entitled “Resignation of Membership,”
“Note: Rose Creek management may terminate a member at any time if deemed
necessary.” Rules and Regulations, p. 3. Plaintiffs contend Defendant’s termination of the
agreements was in violation of the terms thereof, because the terminations were not
premised on violation of one or more rules by any Plaintiff. Rather, Plaintiffs argue, and
Defendant essentially concedes, Defendant determined the Master Member Agreements
were a detriment to its finances, and the Club finds itself at a financial crossroads.
Terminating the Master Member agreements simply made financial sense for the
Defendant. As a result, Plaintiffs filed this action in the District Court of Oklahoma County
alleging breach of contract. They seek declaratory and injunctive relief. Defendants
removed the action to this Court. Plaintiffs reasserted their request for preliminary
injunctive relief, requesting that the Court permit them to exercise their rights under the
Master Member Agreement during the pendency of this action.
To obtain a preliminary injunction, petitioners must show: “(1) a
likelihood of success on the merits; (2) that they will [likely] suffer
irreparable harm; (3) that the balance of equities tips in their favor; and (4)
that the injunction is in the public interest.” Petrella v. Brownback, 787 F.3d
1242, 1257 (10th Cir. 2015). See also Glossip v. Gross, 135 S. Ct. 2726, 2736
(2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the
movant's right to relief must be clear and unequivocal.” Fundamentalist
Church of Jesus Christ of Latter–Day Saints v. Horne, 698 F.3d 1295, 1301
(10th Cir. 2012) (internal quotation marks and citation omitted); see also
Johnson & Johnson Vision Care, Inc. v. Reyes, Nos. 15–4071, –4072, –4073,
2016 WL 7336568, at *3 (10th Cir. Dec. 19, 2016).
The purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can
be held. Given this limited purpose, and given the haste that is
often necessary if those positions are to be preserved, a
preliminary injunction is customarily granted on the basis of
procedures that are less formal and evidence that is less
complete than in a trial on the merits. A party thus is not
required to prove his case in full at a preliminary-injunction
hearing, and the findings of fact and conclusions of law made
by a court granting a preliminary injunction are not binding at
trial on the merits.
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (citations omitted).
See also Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776
(10th Cir. 2009); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th
Cir. 2009) (primary goal of preliminary injunction is to preserve the pre-trial
status quo). The grant or denial of a preliminary injunction lies within the
sound discretion of the district court. Amoco Oil Co. v. Rainbow Snow, 748
F.2d 556, 557 (10th Cir. 1984). See also Dine Citizens Against Ruining Our
Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016).
Wyoming v. United States Dep't of the Interior, No. 2:16-CV-0280-SWS, 2017 WL
161428, at *3–4 (D. Wyo. Jan. 16, 2017).2
The Court finds that Plaintiffs have failed to meet their burden of establishing the
preliminary injunctive relief is appropriate. There are fifty separate Plaintiffs. The Court
has before it the affidavit of a single Plaintiff, Jeffrey Adkins alleging that the Rules and
Regulations upon which Defendant relied to terminate the memberships were not in effect
at the time the Master Member Agreements were executed and that he and other
unidentified potential members made express inquiry regarding the grounds for termination
by Tour18 prior to execution of the agreement. Mr. Atkins, however, cannot speak for the
remaining forty-nine Plaintiffs with regard to their understanding of the grounds for
potential termination. Furthermore, Mr. Adkins’ testimony is contradicted by the
declaration of Dennis Wilkerson, Tour 18’s president, wherein he indicates those particular
Rules were in place. Furthermore, the Master Membership Agreement indicates that the
rules are “as established and published by Tour18” does not mandate that particular rules
were effective and were to remain effective into perpetuity. The Court finds that in light of
the substantial factual issues that Plaintiffs have not established a likelihood of success on
Furthermore, regardless of the merits of Plaintiffs’ claims, the Court finds they have
failed to establish they will suffer irreparable injury in the absence of the injunction.
Defendant advocates for use of a heightened standard for granting mandatory injunctive relief, charactering the
request for reinstatement of their Master Memberships pending outcome of this action as mandatory rather than
prohibitory. See Kikumura v. Hurley, 242 F.3d 950, 955 10th Cir. 2001)(setting forth the types of injunctions that
are disfavored and thus are subject to heightened burden). The Court need not decide whether this heightened
standard applies, however, because Plaintiffs have failed to meet the lesser standard.
The irreparable harm requirement is the “single most important prerequisite
for the issuance of a preliminary injunction.” Dominion Video Satellite v.
Echostar Satellite Corp., 356 F.3d 1256, 1260–61 (10th Cir. 2004).
“[M]erely serious or substantial” harm is not “irreparable” harm. Prairie
Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir.2001)
(quotation omitted). Rather, to constitute irreparable harm, “an injury must
be certain, great, actual and not theoretical.” Heideman v. South Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal citations omitted).
Additionally, a plaintiff can meet this requirement only by demonstrating “a
significant risk that he or she will experience harm that cannot be
compensated after the fact by monetary damages.” Greater Yellowstone
Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003) (emphasis added).
“It is...well settled that simple economic loss usually does not, in and of itself,
constitute irreparable harm,” as such losses are compensable by monetary
damages. Heideman, 348 F.3d at 1189.
Intelligent Office System, LLC v. Virtualink Canada, LTD., 2016 WL 687348, *5 (D.Colo.
Feb. 18, 2016). Plaintiffs are not barred from playing golf at Rose Creek as the situation
currently stands. They are free to play as non-member/open play participants at Rose Creek
or other golf courses or to pay the monthly membership fee and join Rose Creek. In the
event they ultimately prevail, each Plaintiff will be entitled to recover their damages from
January 1, 2017 until the time of judgment in their favor. Despite the affidavits of Faye
Haynie, Vicki Eckerd, and Penny Hammack, regarding the loss of the Lady Bug
Tournament, which has apparently already been cancelled and thus cannot be remedied by
an injunction, the Court finds that the inability to participate in the Women’s Golf
Association at Rose Creek insufficient to establish irreparable harm sufficient to warrant
injunctive relief.3 The remaining Plaintiffs present no evidence in support of their
contention of irreparable harm, and the Court is unable on the current record to conclude
Because the tournament has already been cancelled, an injunction is not appropriate, as injunctions are not
designed to remedy past harm. See Schrier v. University of Colorado, 427 F.3d 1253, 1267 (10th Cir. 2005).
that such harm exists or is imminent. In light of Plaintiffs’ failure to establish irreparable
harm, the Court need not analyze the remaining equitable factors.
For the reasons set forth herein, the Court concludes that Plaintiffs are not entitled
to preliminary injunctive relief having failed to establish irreparable harm. As such, the
Court hereby DENIES Plaintiffs’ motion. The Court, however, hereby orders Defendant to
inform the Court within twenty-four hours of any offer to purchase Tour 18 or any of the
assets related to Rose Creek or of any letter of intent with regard to the course or the related
property owned by Tour18. The Court will conduct a Status and Scheduling Conference
on April 6, 2017, at 10:00 a.m. the Joint Status/Schedule Report and Discovery Plan (one
document) shall be filed not later than Thursday March 30, 2017.
IT IS SO ORDERED this 15th day of February 2017.
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