Great Bay Condominium Owners Association, Inc. v. The Neighborhood Associations, Inc.

• Court: Superior Court of The Virgin Islands
• Decided: April 11, 2022
• Docket: ST-18-CV-768
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

GREAT BAY CONDOMINIUM OWNERS ) ASSOCIATION INC ) CASE NO ST 18 CV 768 ) Plaintiff ) v ) ACTION FOR DECLARATORY ) JUDGMENT TO CANCEL DEED THE NEIGHBORHOOD ASSOCIATION INC ) AND TO QUIET TITLE ) Defendant ) 2022 VI Super 4lU M—_) W MARK WILCZYNSKI Esq MARIA TANKENSON HODGE Esq Law Office of W Mark Wilczynski Hodge & Hodge Palm Passage Ste C20 22 1340 Taarneberg St Thomas Virgin Islands 00804 St Thomas Virgin Islands 00802 Atrorneysfor Plamtsz Attorneysfiv Defendant

DAVIDF WENTZEL Esq Wentzel Law Offices 77 W Washington St Suite 2100 Chicago Illinois 60602 Attorneysfor Plamnfl

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

fill THIS MATTER came on for successive hearings on November 19 2021, and December

8, 9, and 13, 2021, on Defendant s, The Neighborhood Association, Inc (‘ NA”), Emergency

Motion for Temporary Restraining Order and Preliminary Injunction filed on November 12,

2021 Plaintiff, Great Bay Condominium Owners Association, Inc ( Great Bay”), filed its

‘ Motion to Dissolve or Modify Temporary Restraining Order” and the pertinent exhibits on

November 15, 2021 Defendant filed its response on November 18, 2021 NA sought to enjoin

Great Bay from demanding payment of special assessments fees incurred from 2017 to 2021 for a Great Bay Condommmm Owners Assouanon, Inc 2022 V1 Super 4IU v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

restaurant and lounge on the premises of the Ritz Carlton Hotel, St Thomas, Virgin Islands Under

the Declaration of Condominium and its amendments Commercial Unit 1 (hereinafter referred to

as “CU l,” the “lounge ’ or “Grand Palazzo Club”) which operated as the Grand Palazzo Club is

a restaurantllounge created for the exclusive use of NA members, who are the owners of two

bedroom suites located in the Gardenia and Heliconia Buildings On October 22, 2021, NA

members were collectively assessed over $1 million in maintenance fees, late charges and interest

To fully understand the nature of Defendant NA 5 request for injunctive relief, the Court must first

start with the underlying claims of the Complaint

112 In December 2018 Great Bay filed an action against NA seeking to cancel the deed and to

quiet title; and requesting declaratory judgment On September 20, 2017,l NA conveyed a

condominium deed to Great Bay for Commercial Unit 1 This deed conveyance from Salvatore

M Cutrona, Sr , NA’s President, to Abigail Chung, then Vice President of Great Bay, embodied

the transfer of CU 1, located on the fifth floor of Building G Gardenia, to Great Bay Great Bay

refused to accept the deed and denied any conveyance or obligations to pay the maintenance fees

and expenses associated with CU I Great Bay has demanded that NA continue, despite the deed

conveyance, to pay all expenses associated with the restaurant/lounge

1B Prior to and during this action, Great Bay assessed NA for the CU 1 maintenance fees for

the years 2017, 2018, and 2019 2 Those amounts remained unpaid Then on October 22, 2021,

while the underlying action remains pending as to the validity of the deed and its conveyance,

1 The Virgin Islands experienced two Category 5 storms, Hurricanes Irma and Maria, on September 6, and September 20, 2017 respectively See Nationa10ceanic and Atmospheric Administration and National Weather Service, ‘National Hurricane Center Tropical Cyclone Report Hurricane Irma published on September 21, 2021 at 25 and National Hurricane Center Tropical Cyclone Report Hurricane Maria published February 14, 2019, at 30 2 Plaintiff‘s Exhibit 13 at 2

2 Great Bay Condommium Owners ASSOL'laIlOII, Inc 2022 VI Super 41U v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

Great Bay disseminated invoices in excess of $1 million levied directly against NA members for

the amounts owed for the years 2017 through 2021 triggering the request for the temporary

restraining order and preliminary injunction

1|4 The (curt issued the Temporary Restraining Order( TRO ) on November 12, 2021 and

held a status conference on November 16 2021 After hearing preliminary arguments at the status

conference, the Court orally denied the motion to dissolve or modify the TRO and proceeded

towards a preliminary injunction hearing

115 At the hearings, the Court heard the sworn testimonies of Salvatore M Cutrona Sr , NA’s

President Marsha Leighton Herrmann, Director of Finance for the Ritz Carlton Club St Thomas,

Abigail Chung President of Great Bay Condominium Owners Association, and Thomas Doyle,

Treasurer of Great Bay Condominium Owners Association For the following reasons, the Court

will grant the motion for injunctive relief due to a clear showing that relief is warranted when the

factors are considered and weighed

I Brief factual background

‘6 NA sought to enjoin Great Bay from unilaterally assessing the 288 NA members for the

full amount of five years of past common charges Great Bay has assessed for the commercial unit

Great Bay Condominium Owners Association consists of 1,260 residence interests There are 80

units, each possessing 12 deeded fractional interests This portion makes up 960 interests In

addition, there are 288 deeded fractional interests situated in two (2) buildings, Gardenia

( Building G ) and Heliconia (“Building H ) NA is comprised of the two (2) buildings, but NA

owners are also members of Great Bay Of the 288 fractional interests belonging to NA, forty nine

3 Great Bay Condominium Owners Assocumon, Inc 2022 VI Super 4lU v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

percent (49%) are owned by the Ritz Carlton and the Marriott Vacation Club Trust 3 The

remaining fifty one percent (51%) are individual owners The remaining twelve (12) interests are

associated with CU 1 CU 1 was initially designated as a food and beverage service with a lounge

area for the exclusive use of residence interest owners of two bedroom suites in Buildings G and

H The suites in both buildings were constructed with galley kitchens and no dining rooms, unlike

the other larger units at the Ritz Carlton with larger kitchens and dining areas Thus, CU l was

created solely for the purpose of having a food and beverage service and lounge to accommodate

these suite owners

1|7 On May 10, 2002, the Ritz Carlton, through a Declaration of Condominium, established

the Great Bay Condominium Owners Association, Inc , pursuant to Chapter 33, Title 28 of the

Virgin Islands Code and recorded the Declaration in the Office of the Recorder of Deeds for the

District of St Thomas/ St John Great Bay, a not for profit association, is located on the pr0perty

of the Ritz Carlton Hotel NA is also a not for profit association on the premises On the same

day, the Supplementary Declaration of Condominium was also recorded and created the Residence

Interests4 in the Condominium During the ensuing months, several amendments to both

declarations were created to meet the needs of the interested parties The First and Second

Amendments to the Declaration became effective on July 5, 2002, and December 6, 2002,

respectively There were also First and Second Amendments to the Supplementary Declaration

which became effective on December 6, 2002, and January 7, 2004, respectively

3 See Plaintiff’s Motion to Dissolve or Modify Temporary Restraining Order at 2 4 See November 19, 2021, Hearing Transcript at 16 lines 1 8 (defining the residence interests as deeded fractional interests Since the condominiums are not full ownership each unit has twelve (12) deeded fractional interests that provide owners twenty one (21) days of use on a rotating basis ) 4 Great Bay Condominium Owners Association, Inc 2022 VI Super 4lU v The Neighborhood Assocmrwn, Inc Case No ST 18 CV 768 Memorandum Opinion

118 On November 15 2005 Ritz Carlton signed the Third Amendment to the Supplementary

Declaration and the Fourth Amendment to the Declaration which both amendments created NA

and the plans to refurbish Building H which would house twelye two bedroom suites On June 6,

2006, with the Fifth Amendment to the Declaration, Building G was conveyed from the Ritz

Carlton hotel to the interval ownership Ritz Carlton Destination Club program, thus adding

Building G to Great Bay Building G added twelve more two bedroom suites to NA and created

the Commercial Unit 1 on the top floor The conflicts and controversy in this matter are rooted in

these amendments

119 NA was formed for the sole purpose of taking ownership operation, and maintenance of

CU 1 Although NA was formed in November 2005, it was not until 2006 when NA began to

operate and pay for CU 1 Two years later the Ritz Carlton formally conveyed the deed to CU l

to NA on December 20, 2008 From 2006 through 2016, only NA members were responsible for

common area charges associated with this lounge, ie only 288 members of the 1,260 were

responsible These charges were assessed by Great Bay to NA and in turn, NA issued individual

assessments for these charges to its members These CL 1 common charge assessments were in

addition to the individual assessments each condominium owner is subject to by Ritz Carlton for

their suites

fil10 The underlying issue here is whether the conveyance of the Condominium Deed dated

September 20, 2017, from NA to Great Bay is considered a valid conveyance, thus determining

whether the October 22, 2021 invoices assessed to each NA member was a proper assessment

Despite an absence of a ruling in the underlying action, coupled with Great Bay’s outright rejection

of the deed conveyance and continued accrual of maintenance fees, Great Bay unilaterally

S Great Bay Condomimum Owners Association, Inc 2022 VI Super 41D v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

proceeded to issue, on October 22, 2021, invoices to all 288 NA members demanding payment for

all common charges assessed from September 2017 through October 2021 NA alleges their

conveyance of the deed to Great Bay on September 20, 2017 relieved NA members of the duty to

pay common area charges on the building for those years and consequently Great Bay, as the

owner, is entirely responsible for the maintenance of the lounge and the outstanding costs

1111 In their October 22, 2021 demand letter, Great Bay required payment in full for the five

years of past assessments by November 22, 2021, stating [i]f the invoice is not paid in full within

30 days the Members Association will take further action as provided for in the Declarations The

letter directed NA members to refer to the Declarations and Amendments on the Ritz Carlton’s

webpage

1112 To support their respective positions, each party introduced several exhibits consisting of

the Declaration, Supplementary Declaration, several amendments, Articles of Incorporation and

Bylaws for each association, and Condominium Deeds The Declarations and Amendments set

forth several options Great Bay may exercise to address delinquent assessments, including locking

members out of their condominium units and preventing them from accessing all amenities of the

Ritz Carlton premises until the assessments are paid in full The regular annual assessments were

issued by the Ritz Carlton on October 1, 2021, with a deadline of November 2, 2021, payment

options, and other punitive measures the Ritz Carlton may take to address any delinquent member,

including a “lock out” option As stated supra, three weeks later the invoices in dispute were issued

to each NA member at approximately $3,500 per member, totaling over $1 million, and were due

by November 22 2021

6 Great Bay Condomimum Owners Assocumon, Inc 2022 VI Super 41U v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

'1 1 3 Upon receiving this second notice, NA filed the instant motion for a temporary restraining

order and preliminary injunction The Court granted the temporary restraining order on November

12, 2021 On November 14 2021, Great Bay issued a Unanimous Written Consent directing the

third party billing company, Concord Servicing Corporation to rescind the invoices issued on

October 22, 2021 ‘ However, despite inquiries Great Bay did not refund any NA members who

had already paid the assessments 6 On December 13 2021 the Court issued a bench ruling granting

the preliminary injunction

II Analyzing the four factors of determining whether to issue a preliminary injunction in favor of the Defendant

{[14 When determining whether to issue a preliminary injunction, the trial court considers the

following factors on a sliding scale basis 1) the probability of success on the merits, 2) the threat

of irreparable harm if the injunction is denied, 3) the balance of the harm between the parties if

granted; and 4) the public interest 7 The Supreme Court, in Yusefv Hamea' 59 V I 841, 854 (V I

2013), concluded that the soundest rule for the Virgin Islands is “a sliding scale test, wherein a

strong showing on one factor may decrease the weight assessed to other factors” allowing an

injunction where ‘the probability of success on the merits is low if the Court determines that the

moving party 5 likelihood of irreparable harm is great and the nonmoving party 5 likelihood of

irreparable harm is very low ”

A NA has shown a reasonable probability of success on the merits

' 15 First, the Court must analyze NA’s probability of success on the merits When addressing

5 See Defendant’s Exhibit N l, Unanimous Written Consent in Lieu of a Special Meeting of the Directors of Great Bay Condominium Owners Association, Inc 6 See December 9 2021 Hearing Transcript at 196 lines 12 13 7 3RC & Co v Boynes Trucking Sys Inc 63 VI 544 553 (V I 2015)

7 Great Bay Condommmm Owners Association, Inc 2022 VI Super 4lU v The Netghborlwod ASSOCIUIIOII, Inc Case No ST 18 CV 768 Memorandum Opinion

a reasonable probability of success on the merits, the movant must show that it has ‘a reasonable

chance, or probability, of winning, not that it will actually prevail on the merits at trial 8 The

movant must introduce evidence making out a prima fame case 9 Here, NA has adequately

validated its request for injunctive relief by showing pursuant to the Declaration of Condominium

and its relevant Amendments, which govern both Great Bay and NA, and through application of

Title 28 of the Virgin Islands Code, that Great Bay has improperly assessed the common charges

of CU I

1H6 The pertinent Amendments to this motion are the Third Amendment to the Supplementary

Declaration and the Fourth and Fifth Amendments to the Declaration As stated supra, on

November 15 2005, the Third Amendment to the Supplementary Declaration and the Fourth

Amendment to the Declaration established the Neighborhood Association in conjunction with the

construction proposal for Building H which would house twelve two bedroom suites and require

these residence owners to be members of the newly established Neighborhood Association

1117 On June 6 2006 the Fifth Amendment to the Declaration added Building G to Great Bay

including twelve more two bedroom suites and CU l on the fifth floor The Fifth Amendment also

detailed NA’s ownership and responsibilities regarding CU l

1118 In December 2008, Ritz Carlton'0 (also referred to as the Developer ), conveyed a

condominium deed to CU l to NA From 2008 until 2013, CU 1 provided food and beverage

services and was used solely for the use and enjoyment ofNA members and occupants in Buildings

G and H After being operated and used exclusively by NA for a period of five years, NA renovated

3 SBRMCOA LLC v M01 ehouse Real Estate luvs LLC 62 V I 168 187 (V I Super Ct 2015) 9 Funnel! v Carter 621 F 2d 578 583 (3d Cir 1980) '0 Sometimes referred to as the ‘Declarant ”

8 Great Bay Condominium Owners Association, Inc 2022 VI Super 4lU v The NetghborlmodAssocumon, Inc Case No ST 18 CV 768 Memorandum Opinion

CU I from a food and beverage service to a fully operational restaurant, the Grand Palazzo Club

On August 8, 2013, NA and Great Bay entered into a “Residence Owners Agreement ’ (“ROA”),

which allowed for members of Great Bay to access the Grand Palazzo Club and dine there for a

fee and, in turn, Great Bay would assess NA for the charges of CU l, but Great Bay would pay

these charges " This agreement was amended twice on November 1, 2014, and November 1, 2015,

both amendments modifying the agreement to allow for Great Bay members to have more access

to the lounge and its amenities, and modified the payment of the CU l assessments ‘2 The First

Amendment modified the ROA to allow for Great Bay members to participate in the breakfast

service, receive a fifieen percent (15%) discount on menu prices for meals and beverage services,

and access wine storage lockers without charge Additionally, NA agreed to pay Great Bay a

monthly aggregate equal to fifteen percent (15%) of the charges incurred by the members and their

guests during the month for all meals and beverage services

'19 Under the Second Amendment, the ROA was modified again and charged Great Bay

members for breakfast services at the same rate NA members paid and additionally changed the

discount for members, from fifteen percent (15%) on beverage services to ten percent (10%) Most

importantly, the Second Amendment modified the agreement where Great Bay would pay an

annual fee for access to the lounge in an amount equal to half of the annual dues obligation of NA

to Great Bay with respect to CU 1 '3

' See Plaintiff’s Exhibit 15, Residence Owners Agreement dated August 8, 2013 ' See Plaintiff‘s Exhibit 16, First Amendment to the Residence Owners Agreement dated November 1, 2014, and Exhibit [7, Second Amendment to the Residence Owners Agreement, dated November 1, 2015 ” See Id

9 Great Bay Comlommmm Owners Assocmtwn, Inc 2022 VI Super 4lU v The Neighborhood Associatmn, Inc Case No ST 18 CV 768 Memorandum Opinion

1|20 This arrangement between NA and Great Bay continued until the end of 2016 '4 In 2016,

NA alleges they were in the process of transferring ownership to Great Bay and assisting with

transition of the operation of the Grand Palazzo Club to keep it functional as a restaurant '5 Great

Bay disputes this, however, acknowledged these discussions in their Complaint in a different, but

related case, ST 2019 CV 00650 '6 Neither party provided documentation to support either

contention; however, on September 20, 2017, NA signed a deed conveying CU l to Great Bay,

which lead to the filing of the Complaint

1121 Great Bay rejects the deed conveyance and contends discovery is needed to determine the

validity of the deed, as Mr Cutrona, Sr created five originals of the deed The five originals were

distributed accordingly a copy sent via Fed Ex was mailed to Abigail Chung, then Vice President

of Great Bay in 2017, a copy sent to John Doyle, then President of Great Bay, a copy retained by

Mr Cutrona, Sr , a copy transmitted to NA 5 then Secretary Marc Betesh, and a final copy was

sent to NA’s counsel

1|22 On March 6, 2018, NA 5 counsel recorded the deed and transmitted a copy of the recorded

deed on March 23, 2018, to Great Bay 5 counsel Not only does Great Bay move to cancel the deed

as an improper conveyance, but they also question the validity of the deed because of what appears

to be different signatures on five originals Mr Cutrona, Sr testified that he created five duplicate

copies, containing identical language '7 Title 28 Virgin Islands Code § 132 provides ‘ [t]he record

of any document in the office of the recorder of deeds, or a copy ofsuch record, shall be admissible

in evidence in any court in the Virgin Islands ” In the context of a duplicate deed, the federal rules

:2 November 19, 2021, Hearing Transcript at 23 lines 7 25 and 24 lines 1 23

'6 [Sig Plaintiff‘s Exhibit 13 at 5 '7 December 13 2021 Hearing Transcript at 82 lines 15 25 and 83 lines 1 25 and 84 lines 1-4 10 Great Bay Condanumum Owners Assocmtiou, Inc 2022 VI Super 41U v The Neighborhood Assocratwn, Inc Case No ST 18 CV 768 Memorandum Opinion

of evidence provide a duplicate is admissible in the same extent as an original unless (I) a

genuine question is raised as to the authenticity of the original or (2) in the circumstances it would

be unfair to admit the duplicate in lieu of the original ” See Enfield Green Homeowners Ass n v

Franczs 340 F Supp 2d 590 594 n 6 (D V I 2004) The Court finds there is no genuine issue

raised as to the authenticity of the original as the five duplicates sent to members of both patties

are identical but for slight differences in the signatures Still, Great Bay argues discovery is needed

to determine whether there was a proper conveyance

T23 Since the conveyance on September 20, 2017, NA has not paid common assessment dues

on CU 1 NA argues Great Bay had an obligation to accept the deed, so long as it was free of

service contracts and other obligations, pursuant to the Fourth Amendment to the Declaration

Arguing, therefore, NA does not own the Grand Palazzo Club and does not owe these assessments

Great Bay argues the conveyance is not valid because they did not accept the deed, had no

obligation to accept the deed, and regardless of ownership, NA 3 members are responsible for the

CU 1 assessments per the Declaration The Third Amendment to the Supplementary Declaration

and the Fourth and Fifth Amendments to the Declaration provide enough context to ascertain

whether these invoices were assessed properly and should be enjoined

i Legal Analysis

1124 The Supreme Court of the Virgin Islands has held that a condominium association’s by

laws and governing documents are to be construed “according to the general rules governing the

construction of statutes and contracts ” See Weary v Long Reef( ondommtum Assocmtzon, 57 V I

163 170 (V I 2012) (citing Smgh v Smgh 9 Cal Rptr 3D 4 27 28 (Cal Ct App 2004)) When the

governing documents of condominium associations are clear and unambiguous, the Court must

11 Great Bay Condonumum Owners Association, Inc 2022 VI Super 41U v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

follow their plain meaning See Id at 169 “To determine whether a contract is ambiguous, we

resort to principles of contract interpretation, keeping in mind that our primary purpose is to

ascertain and give effect to the parties objective intent ’ thllzp v Marsh Monsanto, 66 V I 612

624 (VI 2017) The Court cannot rewrite [the Declaration or Amendments] by looking to

evidence outside the four comers of the [Declaration or Amendments] to determine the intent of

the parties 1d at 628

1125 Here, the Third Amendment to the Supplementary Declaration established NA as a member

of Great Bay and its responsibilities for CU 1 It also lays the premise as to why both parties

dispute the interpretation of certain provisions of the Declaration The Third Amendment

paragraph four (4) states, in pertinent part

‘ The twelve (12) Residences which are the subject of this amendment are Two Bedroom Suites and, as such, all Owners of Residence Interests therein shall in addition to being Members of the Condominium Association,l8 be mandatory members of the Neighborhood Association whose contemplated sole purpose shall be to own and operate a Commercial Unit More particularly, and in accordance with the separate organizational and governing documents of the Neighborhood Association, its members shall control the Neighborhood Association and be responsible for all costs and expenses related to the ownership and operation of the Commercial Unit owned by it, including but not limited to any services that it may elect to provide ”

NA premises its entire argument on ownership NA points to this language to emphasize that the

responsibility for the assessments is only for commercial units which NA owns

1|26 NA 3 Bylaws support NA 5 contention The Bylaws provide for the Powers of the Board")

which gives the Board the authority to “purchase, lease or accept conveyance of the Lounge

'8 The “Condominium Association“ is referring to Great Bay See Infra at 1 l '9 NA 5 Bylaws Article [V § 3

12 Great Bay Condomimum Owners Association, Inc 2022 VI Super 4lU v The Neighborhood Assocmtum, Inc Case No ST 18 CV 768 Memorandum Opinion

without the vote of the Members,”20 and convey property, 2' as well as the power “to make

and collect assessments and use and expend said assessments to carry out the purposes and powers

of the [Neighborhood] Association ”'2 The Board is elected by the members of the Association

and is responsible for carrying out the affairs of the Association Within NA 5 own Bylaws, the

Board has the ability to convey CU 1 Hence, they argue, if NA no longer owns it, they cannot and

should not be held responsible for its upkeep To the contrary, Great Bay contends that this same

language in the Third Amendment shows that the suite owners are exclusively responsible for the

assessments The above quoted language and similar language are reiterated throughout the

Declaration but the Court finds the Fourth and Fifth Amendments to the Declaration provide more

clarity to the plain meaning of the Declaration

'_|27 The Fourth Amendment to the Declaration, paragraph five (5), effective November 15,

2005, further specifies the rights and duties of NA The Fourth Amendment provides, in pertinent

part

“The Declarant or an Owner of a Commercial Unit may also convey a Commercial Unit, or any subdivision thereof in the case of Declarant, to the Association for no or nominal consideration without the consent of any other Owner or the Association, and the Assoczanon shall be obligated to accth such conveyance A Commercial Unit will only be transferred to the Association free of service contracts or other obligations other than as provided in the Declaration, By laws and Rules and Regulations, all as amended from time to time ”

NA relies heavily on this Amendment to support their argument that not only did NA have the

authority to convey the deed, but also Great Bay had the duty to accept the deed, therefore Great

Bay owns CU 1 Conversely, Great Bay argues the association being referred to in the Fourth

2° Id at §3 (c) 1 Id at §3 (1) Id at §3 (d)

13 Great Bay Condominium Owners Association, Inc 2022 VI Super 41U v The Neighborhood Assocmnon, Inc Case No ST 18 CV 768 Memorandum Opinion

Amendment refers to NA Considering Great Bay 5 interpretation, it would mean NA can only

convey the unit back to themselves

‘28 If the Court were to adopt Great Bay 5 interpretation of the Fourth Amendment, it would

read as follows

“[t]he Declarant or an Owner of a Commercial Unit may also convey a Commercial Unit, or any subdivision thereof in the case of Declarant, to the [Neighborhood] Association for no or nominal consideration without the consent of any other Owner or the [Neighborhood] Association and the [Neighborhood] Association shall be obligated to accept such conveyance ”

This reading would imply that the Owner who at the time was the Neighborhood Association by

virtue of this Amendment, would be able to convey the unit they own back to themselves without

consent This argument seems illogical and undermines the plain reading of the Declaration

'l29 The Court interpreted that the Association referred to in the Fourth Amendment is Great

Bay Each set of governing documents defines which association is being referred to Throughout

the Declaration and the Supplementary Declaration and their amendments, Great Bay is referred

to as the “Condominium Association,” the “Association,” and the Members Association,”

whereas the Neighborhood Association is exclusively referred to as “Neighborhood Association ”

The Declaration defines the “Members Association” as “Great Bay Condominium [Owners]

Association, Inc , a not for profit Virgin Islands corporation established by Declarant

hereinbefore and hereinafter the Members Association’ ’ n This language conveys to the Court

that the Declaration, and its amendments, are specifically tailored to the duties and obligations of

Great Bay, except for where in the amendments there are defined obligations of NA For example,

’3 The Condominium Declaration 1113, at [3

l4 Great Bay Condommtum Owners ASSOCMIIOII, Inc 2022 VI Super 4lU v The NeighborhoodAssociation, Inc Case No ST 18 CV 768 Memorandum Opinion

in the Third Amendment to the Supplementary Declaration Section four (4), paragraph one (1)

describes Great Bay as both the Condominium Association and the Members Association, stating

“[A]ll Owners of Residence Interests therein shall in addition to being Members of the Condominium Association, be mandatory members of the Neighborhood Association ’ 24

and then,

“[i]n addition to the lien in favor of the Members Association against each Residence or Residence interest, [these members are also] subject to a lien in favor of the Neighborhood Association ’25

Whereas NA is explicitly referred to as “Neighborhood Association” both times in the amendment

The language in this amendment is consistent with the October 22 2021 letter sent from Great Bay

to NA which refers to itself as both “the Association,” and the “Members Association, in the

context of examining the Declaration 2“

1|30 This proposition is further supported in NA’s Bylaws and Articles of Incorporation, which

reflect the same interchanging of “Association,” and the ‘ Members Association, 27 when referring

to NA in those documents which were specifically tailored to encompass NA’s duties and

obligations, similar to the Declaration’s encompassing of Great Bay 28 As stated, condominium

associations’ declarations and bylaws are governed according to contract and statutory

interpretation When a contract is ambiguous, the court’s purpose is to ascertain and give effect to

2“ Third Amendment to the Supplementary Declaration § 4, 1[l ’5 Third Amendment to the Supplementary Declaration § 4, 1l2 ’6 Defendant 3 Exhibit B, October 22, 2021, Letter from Great Bay to NA Members at 3 ’7 Plaintiff's Exhibit 8, NA 5 Bylaws, at l ‘The name of the association is The Neighborhood Association, Inc (hereinafier referred to as the ‘Association ) 2‘ Plaintiff's Exhibit 9, Declaration of Condominium, at 14 1|13 The Operations of the Members Association shall be conducted by Great Bay Condominium [Owners] Association, Inc a not for profit Virgin Islands corporation established by Declarant (hereinbefore and hereinafter the Members Association ) Plaintiff‘s Exhibit 9 at 33 The name of the association shall be Great Bay Condominium Owners Association, Inc (sometimes hereinafter the “Association ’)

IS Great Bay Condominium Owners Assocmflou, Inc 2022 VI Super 41U v The Neighborhood Assocmtwn, Inc Case No ST 18 CV 768 Memorandum Opinion

the parties’ objective intent and not the subjective intentions of each party See thllzp v Marsh

Monsanto, at 625 “When a contract uses different language in proximate and similar provisions,

we commonly understand the provisions to illuminate one another and assume that the parties’ use

of different language was intended to convey different meanings Strezbzch v Underwood, 54 V I

488 (V I 2021) (quoting Penncro Assocs V Spring Spectrum L P 499 F 3d 1151 l 156 57 (10th

Cir 2007)) When considering the text of the documents as a whole and the objective intent of the

parties, it can be reasonably interpreted that the general “Association” referred to in each document

can only mean the association as defined in that particular document, unless specified otherwise

Under the plain meaning of the Declaration and evidenced by Great Bay’s letter and the

Developer 5 intent to explicitly refer to NA as the Neighborhood Association, throughout the

Declaration and NA 3 governing documents, it appears that the “Association” in this paragraph of

the Fourth Amendment is referring to Great Bay 29

$31 To further solidify their position, NA argues it is NA, and not the individual suite owners,

who formerly owned the Grand Palazzo Club and NA was liable for assessments, therefore the

individual invoices were improperly assessed However, under NA 3 Articles of Incorporation and

Bylaws, NA and its members are one in the same The membership interest in NA is established

at the time the deed to the suite interest is recorded with the Recorder of Deeds for St Thomas/ St

John 3° The Articles of Incorporation, Article V, Section 4 further states

Membership shall be appurtenant to and may not be separated from ownership of any said Suite Interest and ownership of such Suite Interest shall be the sole qualification for membership Membership shall automatically terminate

’9 See supra at FN 12 3° NA 5 Articles of Incorporation Article V §4 16 Great Bay Condommmm Owners Assocmtwn, Inc 2022 VI Super 41 U v The NetghborhoodAssocmtton, Inc Case No ST 18 CV 768 Memorandum Opinion

upon sale or other disposition of title, in accordance with the provisions of the Declaration ”3'

Article V Section 5 clarifies

‘ Membership in the [Neighborhood] Association may not be assigned, hypothecated or transferred in any manner except with the conveyance of a Suite Interest Membership shall terminate upon the termination of the Declaration or upon transfer of ownership of a Suite Interest, provided the transfer is accomplished in accordance with all of the provisions of the Declaration 32

The articles of incorporation are coherent with the longstanding practice of NA billing the

members for the CU l assessments as NA serves as the conduit for the assessments The issuance

of direct assessments to each NA member is not pivotal, but the mere issuance of the assessments

is Although NA contends the assessments directly to NA members was improper, it is not an issue

of concem because even if Great Bay had assessed NA, which they did in 2017, 2018, and 2019,33

NA would have still refused to pay, which they have

cI32 The CU l assessments are directly tied to ownership of CU 1; therefore, the invoices were

improperly assessed as ownership has yet to be determined The Fifth Amendment to the

Declaration supports this position The Fifth Amendment states the Ritz Carlton conveyed CU l

to the Neighborhood Association for the exclusive benefit of the occupants of the Two

Bedroom Suites Further specifying in paragraph five (5)

“All Owners of Residence that are designated as a Two Bedroom Suite shall, in addition to being Members of the Condominium Association, be mandatory members of the Neighborhood Association whose sole purpose ts to own and operate Commerczal Umt CI ’ I, which shall be conveyed by the Declarant to the Neighborhood Association and utilized for the excluswe benefit of the occupants from time to time of the Two Bedroom Suites, whether or not such occupants are Members of the Neighborhood Association, and as more parttcularly descrzbed m

ll [d

3’ Id at §5 3’ Plaintiff's Exhibit 13 at 2

l7 Great Bay Condommmm Owners Assocumon, Inc 2022 VI Super 4lU v The Netghborhood Assoaatwn, Inc Case No ST 18 CV 768 Memorandum Opinion

the orgamzatzonal and governing documents ofthe Neighborhood Assocmfzon As a member of the Neighborhood Association, Owners of Two Bedroom Suites are responsible for all costs and expenses of the ownership and operation of Commercial Unit CU 1, including but not limited to any services that it may elect to provide ”

Great Bay relies on this, and similar language throughout the Declaration, to argue that the

assessments are proper because it is the suite owners’ responsibility to continue paying the

assessments on CU l, regardless of who owns CU 1 Great Bay uses the fact that Marriott

Vacation Club Trust and the Ritz Carlton, together, own forty nine percent (49%) of the shares of

NA and paid a portion, approximately eight (8) interests worth, of their assessments to support

Great Bay 5 contention suite owners are personally liable Great Bay argues NA members are

required to pay the assessments and then dispute the charges Under paragraph nine (9) of the

Declaration, [n]o Member may withhold payment of any regular or special assessment or any

portion thereof because of any dispute which may exist between that Member and the Members

Association, but rather each Member shall pay all assessments when due pending resolution of

any dispute "4 However, the CU l assessments are separate and apart from the annual assessments

which follow the “pay now, dispute later” process allowed for in the Declaration 35 The CU l

assessments are common assessments under Title 28 § 909 see Infra, similar to the annual

assessments, which are linked to each individual unit, (thus creating the personal liability for those

assessments) The Fifth Amendment ties the personal liability of CU l to the operation and

ownership of CU l

34 The Condominium Declaration 119, at [2 351d

18 Great Bay Condonumum Owners Assocmuon, Inc 2022 VI Super 4lU v The Neighborhood Assocmnon, Inc Case No ST 18 CV 768 Memorandum Opinion

1133 This interpretation is supported by the Developer’s emphasis on the responsibility of CU

1 being connected to NA member’s exclusive benefit in the Fifth Amendment As the owner

with exclusive control and use of the Grand Palazzo Club, NA had the responsibility for the

assessments because only NA members were benefitting from the lounge, as Opposed to all

members of Great Bay benefitting from the other common assessments, such as maintenance fees

for sidewalks and upkeep of other common facilities However, if the conveyance of CU l is

proper, and that issue has not been determined then Great Bay would have the exclusive benefit

of CU I not NA

T34 Yet Ms Chung, Great Bay 3 President testified that under Great Bay’s interpretation of

the Declaration, NA members would be responsible for these assessments in perpetuity She stated

that the suite owners will be liable for as long as they are members of the Neighborhood

Association Further explaining, irrespective of the purported property transfer to Great Bay,

“when a suite owner sells their unit, they don’t have the obligation anymore 36 Mr Doyle Great

Bay’s Treasurer, defended this position to a greater extent even stating that for example if a rich

person purchased the Grand Palazzo Club to operate a restaurant on his own accord, NA suite

owners would still be responsible for the common assessments 37 This interpretation of the

Declaration overlooks the language of the Fifth Amendment which signals to the Court that the

responsibility for these assessments is inextricably tied to ownership of the commercial unit

1|35 Finally, Title 28 ofthe Virgin Islands Code § 909 supports NA 5 argument that the common

charges are proportional to ownership interest Section 909 provides ‘ [t]he common profits of the

3‘ December 9, 2021, Hearing Transcript at 70, lines 12 13 37Id at 114 lines4 l7

l9 Great Bay Condonumum Owners Association, Inc 2022 VI Super 4lU v The NeighborhoodAssocmtwn, Inc Case No ST 18 CV 768 Memorandum Opinion

property shall be distributed among, and the common expenses shall be charged to, the apartment

owners according to the percentage of the undivided interest in the common areas and facilities ”

‘36 Plaintiff argues that these assessments are an issue of real property as restrictive covenants

running with the land therefore, the assessments are not tied to ownership of CU l as NA states

The Declaration explicitly states that the provisions, including the obligation to pay annual

assessments, are covenants running with the land 38 However, the Fourth and Fifth Amendments,

which are specific to CU 1, tie the responsibility of the CU l assessments to ownership by the

Association as a whole If it is later determined that the conveyance was proper and Great Bay has

been declared the owner of the Grand Palazzo Club since September 20, 2017, then the logical

conclusion of § 909 would be that the assessments must be distributed among all Great Bay

members, and not only the 288 NA members Therefore, the analysis depends on whether the CU

l assessments are common assessments and which language is more germane to the issue, the

amendments or the Act

1|37 Throughout the hearings the assessments associated with CU l were referred to as annual

assessments, annual maintenance fees, members dues, and common charges Mr Doyle testified

that all of these terms essentially had the same meaning and that they are common charges 39 He

specified, “[o]ne of the expenses of the [Neighborhood] Association is their share in the common

expenses which is budgeted by GBCOA every year CU 1 has a share in the common expenses

of the Condominium CU 1 has an obligation to pay 18 Interests of dues to cover its share of

the condominium expenses general condominium expenses ’40 When asked directly whether

’8 The Condominium Declaration 1:15 at 14 ’9 December 9, 2021 Hearing Transcript at 110 lines 12 25 and 111 lines 1 5 4“ Id at 34 line 25 and 35 lines 1 13 20 Great Bay Condominium Owners Assocmtwn, Inc 2022 VI Super 4111 v The Netghborhood Assocmtion, Inc Case No ST 18 CV 768 Memorandum Opinion

those CU 1 general condominium expenses were the subject of the invoices, Mr Doyle said,

yes” 4' Hence while the ownership of CL 1 has yet to be determined, and taking into

consideration the governing documents the evidence and testimony presented and a reading of

Title 28, NA has set forth more than a prIma [awe case to show a reasonable likelihood of success

on the merits

B The threat of irreparable harm to NA members is likely if injunctive relief is denied

T38 Next, the Court looks at the threat of irreparable harm to NA if the assessments are

prematurely issued A movant suffers irreparable harm where there is certain and imminent harm

for which a monetary award does not adequately compensate ” Yusef v flamed 59 V I 841, 854

(V I 2013) The outstanding assessments for L U l are in excess of $1 million dollars Ms Chung

testified there was about $760,000 in maintenance fees, $116,000 in late fees, and $142,000 of

interest over the five year period 42 As provided for in the Declaration, one of the penalties for a

delinquent owner is the management company s ability to lockout a member from his or her

residence and all Ritz Carlton facilities This was specified in the October 1, 2021 letter sent from

Ritz Carlton to all Great Bay members regarding the annual dues This letter cites to Section 8 2

ofthe Supplementary Declaration, Section V] Assessments ofthe Aflilzanon Agreement, and states

“Members who have unpaid annual assessments, late fees and/ or interest owing to the Association, shall be ‘locked out’ from all Ritz Carlton Destination Clubs, including their home club in St Thomas Lock out includes no access to reserved allocations or space available reservations at m Destination Club If you do not timely make payment of all amount due and owing for common charges, the ‘lock out will be implemented and shall remain in place until all amounts due and owing, including interest and late charges, are paid in full ”

" Id at 35 line 18 4’ December 13, 2021 Hearing Transcript at 23, lines 22 25

21 Great Bay Condonumum Owners Association, Inc 2022 V1 Super 4lU v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

Ms Marsha Leighton Hemnann, Director of Finance for the Ritz Carlton Club St Thomas,

testified that this is a standard letter that the management company uses, originally drafted in 2010

and sent to members annually ever since 43 In the October 22, 2021 letter sent from Great Bay to

NA members regarding the additional assessments, Great Bay included language which allows

Great Bay to take necessary actions, which implied their capability to lockout members from their

residences 4‘ NA contends that this option to lockout a member from their residence constitutes

irreparable harm

‘39 Great Bay 3 sole argument regarding ‘ lock out is that they do not intend to, nor do they

have the ability to lockout members Mr Doyle testified that the Board met in September to discuss

the past due assessments ‘5 He further stated that the Board decided that the only penalties will be

monetary, and they would not implement lock outs ‘6 Despite this assertion, neither Mr Doyle nor

Mrs Chung provided meeting minutes or any other documentary evidence to support such a claim

Yet, Great Bay argues only the management company has the capability to lock out members and

that the Ritz Carlton 8 October 1, 2021 letter explicitly providing for a lock out measure only

applies to annual assessments This argument is unpersuasive

‘l40 Ms Leighton Herrmann testified that the lock out system is used against delinquent

members and inhibits them from being able to check into their suite for their allotted time 47 As

the managing company for both associations, the Ritz Carlton develops the budgets for both The

Ritz Carlton has a contract with Concord Servicing Corporation (“Concord ’), a third party billing

“3 December 8, 2021, Hearing Transcript at 23, lines 2 6 4“ Defendant 5 Exhibit B, at 4 stating “1f the invoice is not paid in full w'thin 30 days the Members Association will take further action as provided for in the Declarations ’ ‘5 December 9 2021, Hearing Transcript at 172, lines 24 4" Id at [81 lines 1 6 ‘7 December 8 2021, Hearing Transcript at 19, lines 7 16 22 Great Bay Condommmm Owners Assocwtwn. Inc 2022 VI Super 4w v The Netghborlmod Assocmtwn, Inc Case No ST 18 CV 768 Memorandum Opinion

company, to assist with disseminating invoices and collecting payments Once Concord develops

a list of delinquent members they send the list to Members Services and anyone who has not paid

has their account locked so they cannot use their time or reservations at the club or any other

destination club until the balance is paid Ms Leighton Hemann further stated the lock and key

system for the condominium owners is similar to a hotel reservation; members reserve their stay

and check in at the security desk where they are handed an electronic key which will unlock their

units ‘8 When Ritz Carlton implements this punitive measure against a delinquent member, the

front desk clerks are notified and withhold keys

T41 Additionally, Mr Cutrona Sr testified that the Program Manager for the St Thomas Club

is The Cobalt Travel Company, L L C ( Cobalt”) a Marriott subsidiary 49 Cobalt enforces lock

out procedures against delinquent members for both annual and special assessments Notably, the

October 22, 2021 letter from Great Bay to NA members came only three weeks after the Ritz

Carlton sent their annual letter to each NA member which contains language that the lock out

procedures apply to all amounts due and owmg [or common charges ”50 Irrespective of Great

Bay 3 argument that they have no intent on using lock out as a punitive measure, there was no

conclusive testimony or any documentary evidence presented to establish Great Bay has no

authority to demand or request Ritz Carlton to institute a lock out Moreover, there was nothing

to preclude Great Bay from implementing policies and contracting directly with Cobalt, as they

did with Concord, to enforce the lock out mechanism The timing of these two letters and the

‘8 December 8, 2021, Hearing Transcript at 21 lines 16 25 and 22 lines 1 20 ‘9 December 13, 2021, Hearing Transcript at 100 lines 19 25 and 101 lines 1 3 5° Defendant 8 Exhibit C, October 1, 2021 Letter from Ritz Carlton to all Great Bay members, at 2

23 Great Bay Condommmm Owners Assocmtwn, Inc 2022 VI Super 4lU v The Neighborhood Assocmuon, Inc Case No ST 18 CV 768 Memorandum Opinion

explicit threat of lock out in the Ritz Carlton 5 letter is a contributory factor for a reasonable person

to conclude that the threat of a lock out resulted in apparent showing of irreparable harm to NA

1142 The harm, or the appearance of it, is not mitigated by virtue of the existence of alternative

measures Neither is it mitigated or absolved because Great Bay has not decided on that specific

course of action Mr Doyle testified that the Great Bay Board met prior to the issuance of the

letter“ and the Board discussed four options they could take against delinquent members (1 )

lock outs, (2) placing a lien on the unit, (3) renting out the member 5 unit, or (4) seeking

monetaiy judgments against the delinquent members The Court has no assurances in Great Bay 5

position in the absence of minutes or written affirmation to support the Board’s intent of not

instituting a lock out measure for failure to pay the invoices timely Great Bay’s reliance that NA

members will not be banned because Great Bay did not explicitly state they would lock out

delinquent members fails to recognize the “intangible benefits associated with property ownership,

such as the increased sense of pride well being, and security attendant to the right to choose when

and how to use, maintain and cherish one 3 property ’ Hansen v Government of the Vzrgm

Islands, 53 VI 58, 91 (VI Terr Ct 1999) A timeshare plan is a form of property ownership

that allows owners of interests in the plan to share rights to use the timeshare plan property, where

typically each owner is allotted their own period oftime for use ” Great Bay Condommzum Owners

Assoczatlon Inc v Government of Virgin Islands 2018 WL 4690372 *1 (D V I 2018)

1143 Further, the Third Circuit has held that “where ‘interests involving real property are at

stake, preliminary injunctive relief can be particularly appropriate because of the unique nature of

the property interest ’” Mmard Run 011 Co v US Forest Servzce, 670 F 3d 236, 256 (3d Cir

5‘ December 9, 2021, Hearing Transcript at 172, lines 24

24 Great Bay Condominium Owners Assocmtmn, Inc 2022 V1 Super 41 U v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

2011) (quoting RoDa Drilling Co v Slegal 552 F 3d 1203 1210 (10th Cir 2009) While it is

established that timeshare owners have real property interests, NA is ‘ still required to demonstrate

that irreparable harm will result from a temporary cessation of its alleged property right North

Jersey Vineyard Church v Tom :13th ofSouth Hackensack 2016 WL 1365997 *3 (D N J 2016)

The threat of irreparable harm must be “a presently existing one and not a remote or speculative

possibility ” Id Here, NA has adequately shown that the threat of lock out is an imminent threat

and that it is highly probable Great Bay would exercise this punitive measure

1144 This proposition is supported by Mr Doyle s testimony The only evidence provided was

Mr Doyle’s recollection, particularly representing one vote as a Board member, of the decision to

not impose lock outs, or the other measures But even if there was written evidence to show they

will not exercise the lock out option, there is still nothing to preclude Great Bay from subsequently

changing their decision so as to enforce a non monetary punitive measure to ensure NA members

pay the assessments The insistence, without documentary support, that the Board would likely

only seek money judgments against the members is not convincing

‘.45 Even if this lock out was imaginary or NA’s unfounded speculation, Great Bay continued

NA’s suspicions when they issued the December 3 2021 letter instituting a lock out measure The

letter reads, in pertinent part

“Eflectzve November 12 2021 {I a member did not pay thetr dues they were conSIdered delinquent and were locked out ofusmg thezr (me andprlvzleges at the club until they became current ”

This letter magnifies NA’s concerns about being locked out of their units is not some speculative

misreading of the Declaration regarding the action that Great Bay may take, but is an action Great

Bay has taken and will likely take again

25 Great Bay Condommmm Owners Assoaatlon, Inc 2022 VI Super 4lU v The Neighborhood Assocumon, Inc Case No ST 18 CV 768 Memorandum Opinion

1|46 Further, this letter came three weeks after the Court issued the TRO and ordered Great Bay

to rescind the invoices sent to NA Yet, this letter signals to the Court that lock outs are standard

and used by Great Bay against delinquent members In fact, this Court believes the intervention

of the 1R0 which was issued before Great Bay’s November 22, 2021 deadline to pay the

assessments, is the only measure that prevented Great Bay from implementing the lock out This

future threat of lock out was sufficient to constitute irreparable harm

1‘47 In addition to being deprived of his property, Mr Cutrona Sr testified to other

consequences of being locked out of his unit 5’ He testified that members are provided with the

information of their allotted reservations sixteen months in advance in order to provide members

enough notice to arrange airfare, rent out their units, arrange schedules, and book other aspects of

their trips ‘3 Locking members out of their units will severely harm NA members, including having

to make alternative, more costly arrangements regarding airfare and lodging, or even cancelling

the trip altogether Mr Cutrona, Sr stated that regarding his 2022 reservations he has offered one

of his weeks to the winner of a charity auction ’4 He described the embarrassment he would face

if he were locked out of his unit and then must rescind his offer ‘5

fil48 Even more concerning is Great Bay’s option under the Sixth Amendment to the

Supplementary Declaration, which allows Great Bay to rent out the residences of NA members

who are more than sixty (60) days delinquent in paying their assessments ‘6 Even if the member

becomes current and in good standing, the member will have no right to use their allocated

:: December 8, 2021, Hearing Transcript at 105 lines 9 25, 106 lines 9 25, and 107 lines 1 2

5“ fifidavit of Salvatore M Cutrona, Sr ’3 at 1|l3 55 See Id 5“ Sixth Amendment to the Supplementary Declaration at 2, 1l 1(a)

26 Great Bay Condominium Owners Association, Inc 2022 VI Super 4lU v The NeighborhoodAssociation, Inc Case No ST 18 CV 768 Memorandum Opinion

residence interest of that time 57 Without injunctive relief, all NA members who have not paid the

CU 1 assessments, despite paying the annual assessments of their respective unit, would be

delinquent and in jeopardy of having their units being rented The Court finds that locking

members out of their residence is punitive enough; however, to exercise the option to rent out the

members’ units and to deny their use after becoming current, even if the unit is not rented, is clearly

irreparable harm DesPite Great Bay’s insistence that the only penalty would be money judgments,

without injunctive relief there is nothing to prevent Great Bay from electing these punitive

measures “The alternatives presented by [Great Bay] do not negate the existence of irreparable

harm to [NA] See SBRMCOA LLC v Beachszde Assoczates LLC 2015 WL 5168350 *5 (V I

Super Ct 2015) Such a harm is irreparable because it is impossible to restore past deprivation

of pr0peity use ” Id Thus, the threat and ability of irreparable harm is enough to enjoin Plaintiff’s

actions See SBRMCOA LLC v Beachszde Assoczates LL( 2015 WL 5168350 *4 (V I Super Ct

2015) Considering these additional harms coupled with the deprivation of property, the Court

finds this factor weighs heavily in favor of NA

C Great Bay will not be harmed if injunction is granted

I.149 As to the third factor, the balancing of harms between the parties, the court looks at whether

the nonmoving party will suffer irreparable harm if this injunction is issued, and if so to what

extent 5“ The court also considers whether the injunction would destroy the status quo, as one of

the goals of a preliminary injunction is to maintain the status quo ‘9 Here, the underlying litigation

has been pending for four years and Great Bay has not collected on these assessments for five

57 Id at1Il(c) 5” SBRMCOA LLC 62 VI at [88 59 Id

27 Great Bay Condommmm Owners ASSOCMIIOII, Inc 2022 VI Super 4lU v The Neighborhood Association, Inc Case No ST 18 CV 768 Memorandum Opinion

years Great Bay argues that they will be harmed by the issuance of an injunction because they

cannot use those funds for the betterment of the association Despite a lack of testimony, Great

Bay argues there are currently exorbitant maintenance costs associated with operating CU 1 Mr

Doyle testified that Great Bay is responsible for the maintenance and upkeep of the entire Ritz

Carlton premises, including CU l, and Great Bay needs these funds to maintain CU 1 60

$50 Ms Chung testified that on several occasions Great Bay has held dinners with private chefs

and other events in the Grand Palazzo Club during this five year period and has excluded NA from

any use of the lounge 6' Mr Cutrona, Sr also stated NA requested to hold their annual Board

meeting in the lounge which was denied “2 In fact, since September 20, 20217, Great Bay has

outright rejected any use of common space within the condominium, including the Grand Palazzo

Club, member’s reception area, and member s lounge 6‘ Great Bay did not refine this testimony

'51 For the last five years, Great Bay has had exclusive control and use of CU 1 Great Bay

argues NA members abandoned their use of CU |, and under § 920 of the Condominium Act

remain liable for common charges because the duty to pay assessments cannot be abandoned

However, NA members did not abandon their use of CU 1, but rather have been denied access to

the property by Great Bay for failure to pay the assessments Yet despite Great Bay 5 exclusive

use of CU 1, they expect NA 5 members alone to be responsible for approximately two hundred

thousand dollars ($200,000) of assessments annually for a unit they cannot access without

permission from Great Bay and a unit they have been precluded from using

5° December 9 2021, Hearing Transcript at 64 line 25 65 lines 1 9 and 661ines 17 20 6' December 13 2021 Hearing Transcript at 75 lines 4 13, 22 25 6’ December 13 2021 Hearing Transcript at 76 lines 1 3 °’ December 8 2021 Hearing Transcript at 119, tines l 24

28 Great Bay Condonumum Owners Association, Inc 2022 VI Super 4IU v The Neighborhood Assocmnon, Inc Case No ST 18 CV 768 Memorandum Opinion

'|52 Further, Great Bay argues they would be harmed if an injunction was issued because of the

costs Great Bay incurred to invoice the NA members themselves Ms Leighton Herrmann testified

that Great Bay approached the management company to get their assistance with the issuing of the

CU 1 assessment invoices, but the Ritz Carlton declined 64 Ms Chung testified that because the

Ritz Carlton was not going to issue the assessments, Great Bay was “forced” to bill the NA

members themselves requiring Great Bay to separately contract with Concord to invoice the NA

members 6‘ Great Bay argues that by having to re issue these assessments they will be banned

1|53 However, Great Bay was able to promptly notify NA members the invoices were rescinded

by reason of the TRO with a mass email distribution to such members, at no added cost to Great

Bay, thus it can be concluded that Great Bay can re issue the invoices at minimal to no cost The

same invoices could simply be reissued by email, and the same members Great Bay sought to

collect from in its October 2021 invoices would be readily billed again, with whatever additional

interest or late fees accrued Additionally if Great Bay were to prevail in the underlying litigation,

they can collect the assessments for the past five years with interest and include the time between

the issuing of the injunction and the resolution and will be made whole at the conclusion

Therefore, considering the de mmzmzs cost associated with reissuing the invoices, which Great Bay

can recover with interest and that Great Bay has had the exclusive use of CU l for the last five

years, the Court finds there are no significant monetary or other harms associated with Great Bay

not reissuing the invoices

6“ December 8, 2021, Hearing Transcript at 5 1, lines 10 18 65 December 13, 2021, Hearing Transcript at 22 lines 9 25 and 23 lines 1 10

29 Great Bay Condominium Owners Assocmuon, Inc 2022 VI Super 4lU v The Neighborhood ASSOCMIIOII, Inc Case No ST 18 CV 768 Memorandum Opinion

1154 Similarly as Great Bay contracted directly with Concord to disseminate the invoices, they

may also contract directly with Cobalt to enforce the lock out procedures Without the preliminary

injunction there would be nothing to prevent Great Bay from contracting with Cobalt In weighing

the harms to both parties the Court finds NA would face much greater harm if the situation

remained unchanged By granting the injunction in favor of NA, the status quo would remain, NA

members will still have full access to their property and should Great Bay ultimately prevail, Great

Bay would be able to collect the monies due for these assessments with interest

D The public has a significant interest in the facilities at the Ritz Carlton

{[55 With respect to the public interest consideration should be given to Great Bay’s necessity

to use these funds for the betterment of the Ritz Carlton complex as a whole However, the public

also has a significant interest in Associations complying with the Virgin Islands Condominium

Act, their respective Declarations and all Amendments, and their own governing and

organizational documents As previously stated the statutory construction of § 909 is interpreted

as the common area charges for CU 1 are the responsibility of the owner, which has yet to be

determined

1156 Furthermore, the public has an interest in ensuring that rights of condominium association

members are not undermined For the last five years, Great Bay has had control of CU l, to the

outright exclusion of NA, despite Great Bay 8 contention that NA is responsible for the

maintenance fees forever The Court has to take into consideration the apparent inequity in the

mandate of an association to pay assessments in perpetuity for a property it may neither own nor

has access to

30 Great Bay Condominium Owners Assocmuon, Inc 2022 VI Super 4lU v The Neighborhood Assocmflan, Inc Case No ST 18 CV 768 Memorandum Opinion

Accordingly, the Court finds that all four factors weigh in favor of granting injunctive relief

to the Defendant An appropriate Order follows

I Dated April L 2022 enee b arty Judge of the Supe r Court of the Virgin Islands ATTEST Tamara Charles Clerk of the Co rt

4 Latoya mac 0 W Court Clerk Superv mi / £2 /1%

31 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *******

GREAT BAY CONDOMINIUM OWNERS ) ASSOCIATION INC ) CASE NO ST 18 CV 768

Plaintiff ; ACTION FOR DECLARATORY ) JUDGMENT TO CANCEL DEED v ) AND TO QUIET TITLE

THE NEIGHBORHOOD ASSOCIATION INC 3

Defendant ; Cite as 2022 VI Super 4lU ___—_—_)

ORDER

The Court having issued a Memorandum Opinion on this date, it is hereby

ORDERED that Defendant s motion for preliminary injunctive relief is GRANTED, and

it is further

ORDERED that preliminary injunction is imposed upon Great Bay Condominium Owners

Association; and it is further

ORDERED that Great Bay Condominium Owners Association is ENJOINED from

disbursing invoices upon Neighborhood Association members for any assessment fees regarding

Commercial Unit 1, the restaurant and lounge, until final judgment of this matter, and it is timber

ORDERED that Plaintiff‘s Motion to Dissolve or Modify Temporary Restraining Order

is DENIED and it is further

ORDERED that the Temporary Restraining Order entered on November 12, 2021, is

LIFTED and it is further Great Bay Condommmm Owners Assocumon Inc Cite as 2022 VI Super 4lU v The Neighborhood Assoczanon Inc Case No ST 18 CV 768 Memorandum Opinion Order Page Two

ORDERED that copies of this Order shall be distributed to W Mark Wilczynski, Esquire,

David Wentzel, Esquire, and Maria Tankenson Hodge, Esquire

(V I IW Dated April I I 2022 fl, W I 2.11.153, ill“ ' I ' Renee 1 ns C Judge 0 e S . erior of the Virgin I ands ATTEST Tamara Charles Clerk of the Cgurt

1m atoya amacho flCourt Clerk Supe 13mg / // lw‘ IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Thomas/St. John

GREAT BAY CONDOMINIUM OWNERS Case Number: ST-2018-CV-00768 ASSOCIATION, INC., Action: Declaratory Judgment Plaintiff v.

THE NEIGHBORHOOD ASSOCIATION, INC., Defendant.

NOTICE of ENTRY of MEMORANDUM OPINION To: W. Mark Wilczynski, Esquire Maria T. Hodge, Esquire David F. Wentzel, Esquire Clerk of the Court, Tamara Charles Superior Judges & Magistrates General Counsel

Please take notice that on April 11, 2022 a(n) MEMORANDUM OPINIION dated April 11, 2022 was entered by the Clerk in the above-titled matter.

Dated: April 11, 2022 Tamara Charles Clerk of the Court By:

Audrey C. Brin Court Clerk II