United States District Court, W.D. Oklahoma
ANDY BASS, TRUSTEE OF THE ANDY BASS FAMILY TRUST, et al., Plaintiffs,
TOUR 18 AT ROSE CREEK, L.P., Defendant.
L. RUSSELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Preliminary Injunction. (Doc. No 8). 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 follows.
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 December1, 2016.
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.
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.
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.
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.
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.
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.
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,
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 the merits.
regardless of the merits of Plaintiffs' claims, the Court
finds they have failed to establish they will suffer