The Town’s motion asked the judge for permission to file a third party complaint against Troy, seeking “contribution for and indemnification against any liability that the Town may incur” in the case of a decision against the Town in the suit.  The plaintiff, Johnson Golf Management, agreed to the motion by the Town to include Troy as a defendant, but the judge denied the request saying that it was filed too close to the October trial date.

Troy’s attorney Robert Gill of the Boston law firm Peabody and Arnold said the Town’s allegations against Troy have no merit and are just that – allegations.

“There is no suit or claim pending against Mr. Troy,” said Gill, noting the court denied permission to file the complaint. “Anybody can make an allegation and it’s quite another thing to prove it. We will vigorously defend him and at the end of the day, we will prevail.”

In the proposed complaint, the Town also charged that on October 4, 2010, Troy “insisted to the Board of Selectmen that the Court had found that Johnson Golf had little likelihood of success on any of its claims. On that same date, he told the Board that the RFP had been entirely drafted by a consultant hired by the Town. In fact, no consultant contributed to the RFP.”

Paragraph 19 of the proposed complaint alleged, “On multiple occasions, Troy made inaccurate statements regarding the facts of the bidding process for RFP I and II to the Middlesex Superior Court in his arguments for the Town.”

Gill flatly denies those allegations against Troy. Said Gill, “He did not make any misstatements.”

Johnson Golf Management’s lawsuit against the Town of Duxbury is the result of an October 2008 Request for Proposal (RFP) by the Town seeking bids on a five-year contract to manage the municipal North Hill Golf Course and Country Club. Johnson Golf Management, Inc. alleges that the town and the town-appointed North Hill Advisory Committee conspired to deny Johnson Golf the contract to the course, which it had been managing for ten years. It filed suit in December 2008.

When the first RFP was deemed to be noncompliant by town officials, a second RFP was put out to bid in January 2009 and was awarded to CALM Golf. The contract was eventually awarded to Pilgrim Golf LLC.

The Town’s proposed third-party complaint against Troy included a claim for “malpractice,” alleging that “[a]s a result of Troy’s advice, the Town has expended substantial legal fees and costs and the Town’s position in this litigation has been compromised.”

In denying the Town’s motion, Judge Jane Haggerty wrote, “After review, the motion is Denied at this late date. The trial is scheduled for this 2008 case on October 1, 2012.”  The judge’s decision  surprised the town’s attorneys.

“I’m astounded,” said Lenny Kesten, the attorney appointed by Duxbury’s insurance carrier, Massachusetts Interlocal Insurance Association and a partner in Brody, Hardoon Perkins and Kesten, LLP, to defend the Town in this case and three other civil suits. “It was assented to by all parties. It doesn’t change the picture as to what happens at the trial or if we settle.”

When notified of the judge’s decision, Art Kreiger, Duxbury’s interim Town Counsel and a partner in Anderson Kreiger, LLP who is defending the town along with Kesten, said he, too, was surprised.

“It’s unfortunate,” said Kreiger. “It’s a highly unusual decision where the plaintiff assents to the decision. We are currently analyzing our alternatives.”

Kreiger added that the decision by the Board of Selectmen to sue Duxbury’s former town counsel was not a decision taken lightly or in haste.

First term Selectman David Madigan was matter-of-fact when asked about the Town suing Troy.

“We just believe there were mistakes made in the handling of the whole process and there should be some liability there,” said Madigan.

When reached following the judge’s denial of the motion, Chair of the Board of Selectmen Ted Flynn said he needed to consult with counsel before making a statement.

Selectman Shawn Dahlen, who took office in April 2010, said the loss of Troy after 26 years as town counsel is still difficult for him but that the board is acting thoughtfully and carefully with regard to the situation. A lifelong resident of Duxbury, Dahlen said he doesn’t know of any other allegations against Troy in his twenty plus years as town counsel. As for town officials conspiring against Johnson Golf Management to prevent it from getting its contract renewed another five years, Dahlen said there was no conspiracy that he’s aware of, but that he could understand why officials didn’t award the second RFP to Johnson Golf after it filed suit following the first RFP in December 2008.

“Once the suit is made, that’s a different situation,” said Dahlen. “You move onto a new contract, you don’t give them the new contract. If somebody says later, don’t give them the contract, you can’t blame them. It’s human nature.”

According to Kesten, “The town is exploring its options, which include filing a separate lawsuit.”

A copy of the Town of Duxbury’s motion and failed third party complaint against Troy is available on Scribd.com:

Duxbury's Motion Denied by Middlesex Superior Court:

http://www.scribd.com/doc/100418274/Duxbury-Motion-Denied-by-Middlesex-Superior-Court

Johnson Golf Management's Assent to Motion:

http://www.scribd.com/doc/100418888/Johnson-Golf-Assnt-Mtn-3rd-Party-Complaint