More than five years after litigation began, the Johnson Golf vs. the Town of Duxbury lawsuit has now completed it's eleventh day at Middlesex Superior Court in Woburn and is now expected to last until at least Monday, April 22. The trial was supposed to be in session on Friday, April 17, but in light of the recent incidents involving the suspects in the Boston Marathon bombings, Middlesex Superior Court was closed on Friday. The lawsuit against the town alleges the Town of Duxbury violated the law in the bidding process and award of a new management contract for the North Hill public golf course in December 2008 and January 2009.
The trial began last Wednesday, April 3, at 9 a.m. with jury selection. Attorney Stephen Follansbee represents Johnson Golf management and Attorney Leonard Kesten and Duxbury’s current Town Counsel Arthur Kreiger represent the town of Duxbury.
On Tuesday, Town Manager Richard MacDonald wrapped up his testimony, followed by the direct examination of Johnson Golf, Inc., manager Doug Johnson. Tuesday's session went until 4:20 p.m., with Attorney Kesten's cross examination still not finished.
On Wednesday, the session resumed with Kesten's cross examination of Johnson. Kesten's questions focused on the tee time changes proposed by Johnson, as well as membership fee increases and the impact of Johnson's financial decisions on the town. With regard to the original request for proposals for the new contract, Johnson testified that he believed his company was the only qualified bidder. Johnson said he believes there was a conspiracy against him to not award him the new contract to manage the North Hill golf course. Another issue touched upon by both attornies was the problem with the evaluations in the second bidding process.
After Johnson's testimony ended, former selectwoman Betsey Sullivan took the stand. Sullivan was on the board of selectmen for three terms, from 2002-2011 and said she vaguely remembered discussing the change in tee time with Johnson Golf. Sullivan said she also had a vague memory of a controversy in 2004. During the cross examination, Sullivan said she believe the complaints about the tee time changes were "trivial" compared the the various town items she was concerned with.
Former selecman Chris Donato took the stand after Sullivan's testimony ended on Wednesday and court was put in recess until Thursday morning, when Kesten would cross-examine Donato. As Donato's testimony wrapped up on Thursday, the town called in their expert, Kevin Hines, a certified public accountant who had reviewed the financial report given to the court early last week. Attorney Evan Ouellette walked through the reviewed report with Hines, highlighting various differences between Hines' report and Morrissey's report. Overall, Hine's report shows an approximate difference between the reports to be $175,000.
The trial was supposed to resume on Friday morning and the case given to the jury Friday afternoon, but because of the investigation and search for one of the suspects involved in the Boston Marathon Bombings, the court was closed. The trial will resume Monday.
After a full day in session, the Johnson Golf trial will continue on Tuesday, April 16 after the Monday holiday. On Friday, attorney Evan Ouellette cross-examined Johnson's accountant after Ouellette had taken some time to look over the updated expert report. Ouellette questioned Morrissey on why he had chosen to take the average gross revenue for the years 2006, 2007 and 2008. After a bit of calculation, Morrissey testified that he stood by the numbers in his report.
Retired town manager Richard Macdonald returned to the witness stand on Friday for a cross examination by attorney Follanabee. Barbara Hansbury, former general counsel for the inspector generals office, also took the witness stand. Because of time constraints, Macdonald will again be on the stand on Tuesday. So expected to testify are Doug Johnson, former selectmen Betsy Sullivan and Chris Donato, among others.
The trial has now been in session for a week as the plaintiff continues to call witnesses to the stand. Thursday morning saw an hour of housekeeping issues on the floor as materials from the inspector general's office was given to the attornies for both Johnson Golf and the Town of Duxbury. It was ultimately decided that the lawyers would have until Friday to look over materials from the files provided and determine what specific items were needed in court. Additional housekeeping included an updated report from Bryan Morrissey, the certified public accountant for Johnson Golf.
Associate Evan Ouellette, with Brody, Hardoon, Perkins and Kesten, informed Judge Desmond that the numbers included in the updated expert report were significantly different than the ones provided on the previous report. Ouellette and Kesten agreed to allow Follansbee to conduct the direct questioning of Morrissey, but requested to hold off on the cross examination until Friday morning.
Doug Johnson, owner and president of Johnson Golf Management, Inc., also took the stand on Thursday morning, giving an account of the process of bidding on the original contract for the North Hill golf course in 1999. The contract he was awarded, he testified, included a requirement to build a new clubhouse. Johnson said he paid the town $101,000 in rent every year for 10 years, as well as paying $585,000 for the construction of the new clubhouse, a total of $1,595,000 to the town after 10 years.
The trial wrapped up Thursday with Johnson still on the stand. With a full day of court planned for Friday, Tuesday and Wednesday (Monday being a holiday), the judge said he is optimistic the trial will go to the jury by the end of the week. Expected on the stand on Friday are Doug Johnson and Richard MacDonald.
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The trial wrapped up on Wednesday afternoon, April 10, with the direct questioning of Town Manager Richard MacDonald by Kesten. Throughout his testimony, MacDonald stated he relied on former town counsel Robert Troy to make sure the bidding and re-bidding process for the contract to manage the North Hill golf course was done according to the law.
Wednesday morning saw a motion from the Inspector General's office to quash a subpoena for one of their employees and former employee that was issued last Friday, April 5. The attorney representing the Inspector General said certain information requested by both Attorneys Follansbee and Kesten is privileged and not allowable in the court. Because there were three letters from the Inspector General's office already in evidence, Judge Kenneth V. Desmond, Jr., denied the request and allowed a testimony from an employee at the Inspector General's office.
Opening statements began at 9:25 a.m. Thursday, April 04 with Attorney Follansbee, attorney for Johnson Golf Management, Inc. In his opening, Follansbee asked jurors to take the case seriously.
“This may not be as exciting as the cases you see on TV,” Follansbee said. “But it’s a very important case.”
Follansbee explained to the jury he believes the town violated the Massachusetts Procurement Act, which prevents fraud and favoritism in the public bidding sector. He said he plans to prove the town acted in bad faith and will leave it up to the jury to determine what the damages are to the town. In his opening statements, Attorney Kesten reminded the jury that none of the attorneys currently representing the town are former town counsel Robert Troy and it was their responsibility to determine whether the people currently representing the town, specifically Town Manager Richard MacDonald, acted in bad faith.
After the opening statements, the plaintiff called Gordon Cushing, Duxbury director of recreation, to the stand. Cushing has worked for the town since 1989 and testified he has not had any personal disagreements with Doug Johnson, owner of Johnson Golf Management, besides minor customer service relatedissues. Cushing testified that Johnson Golf Management built the new clubhouse at the North Hill Golf Course under its most recent contract. The town, Cushing said, took less money from the contract in order to compensate for the expenses of construction.
In October 2008, the town sent out a request for proposals for a new contract to manage the North Hill golf course. The town rejected all the bids in the first round, at which point Johnson Golf, the golf course manager for 15 years, filed the initial lawsuit. In the second round of bids, the town awarded a five-year contract to Pilgrim Golf LLC.
Follansbee directed the questioning toward the request for proposal process during which the town received five bids for a contract to manage the golf course. Included in the request for proposals was the phrase “or comparable business,” which Cushing testified he believed was unclear. When asked to define the phrase, Cushing testified that he drafted answers and submitted them to then-town counsel Robert Troy.
“Troy said something to the effect of that we were not going to define the term,” Cushing said.
Follansbee continued to question Cushing on his familiarity with Chapter 30B, his recollection of recent North Hill Advisory Committee meetings and the non-price proposal evaluation process. At the end of the session on Thursday, Follansbee said he still had at least 30 minutes worth of questioning left for Cushing.
Because Cushing had a game to coach on Friday afternoon and the judge had determined Friday’s session would last until 4:30 p.m., Kesten requested to suspend Cushing’s testimony and to continue with testimony from other witnesses.
During an all-day session on Friday, Charles Lanzetta, principal of Calm Golf, the company originally awarded the contract in January 2009, and former Duxbury Town Counsel Robert Troy gave their testimonies. As of Monday afternoon, Troy was still on the stand and his testimony was expected to wrap up in the first hour of the session on Tuesday. After Troy’s testimony, Cushing’s testimony would resume. If Cushing’s testimony ends before the end of session, Richard MacDonald would take thestand. Looking forward, Judge Desmond indicated he may extend Friday’s session until 4 p.m. in order to get through more testimony. Follansbee has indicated he will also be calling former selectmen Betsy Sullivan, Andre Martecchini and Chris Donato as well as current selectmen Shawn Dahlen to the stand.