In a blistering legal filing, the attorney for two homeowners fighting for the restoration of Ahwatukee Lakes Golf Course has asked a judge to move forward with their contempt action against owner Wilson Gee and pay no attention to a pending appeal request to the state Supreme Court.
Accusing Gee’s company of “brazenly” and “audaciously” asserting that “the golf course does not exist,” attorney Tim Barnes told Superior Court Judge Steven K. Holding that Gee has ignored orders to restore the course that date back nearly two years.
Barnes also asserts Gee now owns the course through a new company that is not a party to the case on appeal. Hence, he said, the contempt action and the pending appeal are no longer related.
The Court of Appeals in September upheld a January 2018 ruling by Maricopa County Superior Court Judge John Hannah that deed restrictions require the 101-acre site be used as a golf course even though Gee closed it in 2013.
Gee’s company, Bixby Village Golf Course, and The True Life Companies had argued that they had the option of leaving the property vacant or operating it as a golf course, depending upon whether they wanted to cash in on a state tax break for golf courses.
They also aregued that an order requiring a golf course even though it would be a monetary loser violated the U.S. Constitution’s prohibition against slavery.
But Court of Appeals Judge Randall Howe wrote that there is nothing optional about it and that the deed restrictions require that the property is operated as a golf course.
True Life’s lawyers insisted they are no longer a party to the case and the company has no role in the appeal. Gee, a principal in Bixby who closed the course in 2013, foreclosed on a $9 million note True Life had signed to turn it into an “agrihood” with about 160 homes, a farm and other features.
Gee closed the site, saying it was losing money. He repeatedly has said the site will never be a golf course again.
Homeowners Linda Swain and Eileen Breslin, who filed their suit in 2014, want the course restored and are challenging that contention even while the high court mulls Gee’s appeal.
The Supreme Court is not expected to decide whether it will even hear the case until next year, since Barnes has not yet filed a response to Gee’s appeal request.
But Barnes and his clients say there is no need to wait for the high court, arguing the case has been fought in the courts long enough and that it’s time for Hannah’s ruling to be enforced. Hannah was routinely transferred to a different court division and the whole matter now is before Holding.
“The court found the deteriorated condition of the golf course was the result of years of neglect by Wilson Gee and decisions made and actions taken when Mr. Gee closed the golf course,” Barnes said in the petition filed last week.
The petition identifies ACLR LLC as the new owner of the course. Barnes said the company is owned by Gee and comprises several Gee-owned companies that previous owned the course.
Nevertheless, he argues ACLR as the owner of the course is subject to
Barnes used that to assert that “ACLR is not a party to the appeal” and that therefore it cannot use the pending petition before the high court as a reason why the contempt hearing should be held in abeyance.
“ACLR was consciously created by Wilson Gee and the former defendants for some strategic reason – perhaps in an attempt to bog down the enforcement of the permanent injunction by filing bankruptcy if the Arizona Supreme Court denies the former defendants’ petition for review,” Barnes wrote.
Noting Gee state the appeals court ruling would not change his mind when it came to keeping the course closed, Barnes said Gee’s request to delay a hearing in the contempt action ”is essentially asking the court to facilitate his unrepentant intention to sell the golf course to a developer and the Arizona courts’ rulings be demanded.”
Gee has contended that he closed the course because it was losing money and that it would make no sense to spend millions to restore it because it still wouldn’t make a profit.
Estimates on restoring the course vary widely, with Barnes’ experts previously stating it would cost around $6 million and True Life’s consultant putting it at $14 million. Barnes’ experts also have contended that the course would make money if restored so long as the right people manage it.
Barnes also slammed the argument by Gee’s lawyer to the high court – namely, that the Court of Appeals had sidestepped a decision on whether the courts can order someone to operate a losing business.
“In making this argument, ALCR, just as (True Life) and the former defendants before it, ignores that it made a conscious choice to acquire real property which was subject to covenants that ran with the land,” Barnes argues.
Hannah ruled – and the appeals court affirmed – that the conditions, covenants and restrictions governing the 101-acre course required it could only be used as a golf course unless the CC&Rs were changed by a majority of the 5,400 Lakes homeowners.
“ALCR, in a business decision by Wilson Gee, came to own the golf course with the full knowledge of the restrictions as well as the permanent injunction to restore and operate the golf course,” Barnes wrote.
“There is no room for any argument by ALCR that it has been harmed by anything other than its own decision to acquire the golf course,” he continued.
Calling Gee’s request for a delay “a conscious litigation tactic to put off the inevitable,” Barnes said Gee’s appeal “has a steep cliff to overcome in order to be successful on its petition for review” by the Supreme Court and said the likelihood of success “is at best negligible” because there are 124 civil and 169 criminal petitions awaiting a decision to be heard.
Meanwhile, Barnes said, further delay on the contempt hearing “continues to be devastating” on Lakes homeowners.
“Wilson Gee’s stay request mirrors a decade-long record of evasions, fabrications and fictions that have deprived retires around the golf course of the enjoyment of their homes for the opportunity of Mr. Gee to make millions.”
Charging that “the record shows that Wilson Gee has degraded the golf course since 2008,” Barnes also asked the court to require Gee to post a bond of at least $250,000 if the court delays the contempt hearing.