IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
**«*******
HUGH P MABE III and )
SETH S STOFFREGEN ) CASE NO ST 22 CV 018
)
Plaintiffs ) ACTION FOR DECLARATORY
VS ) JUDGMENT TEMPORARY
) PRELIMINARY and PERMANENT
) INJUNCTION
BOARD OF DIRECTORS OF )
MAHOGANY RUN CONDOMINIUM )
ASSOCIATION INC ) 2022 VI Super 34U
Defendant )
)
HUGH P MABE III Esq MARIA TANKENSON HODGE Esq
9160 Estate Thomas Hodge & Hodge
PMB 220 1340 Taameberg
St Thomas Virgin Islands 00802 St Thomas Virgin Islands 00802
Self 7 epresem‘ed LItigsz Attomeysfor Defendant
SETH S STOFFREGEN Esq
P 0 Box 182
Camit Massachusetts 02635
Selfrepresemed Llligam
CARTY RENEE GUMBS Judge
MEMORANDUM OPINION
1T1 THIS MATTER is before the Court on Plaintiffs Motion for Preliminary Injunction
filed on February 25 2022 seeking preliminary and permanent injunctive relief against the Board
of Directors of Mahogany Run Condominium Association Inc Plaintiffs filed their Petition for
Temporary Remaining Order on January 24 2022, which was denied on January 27 2022
Defendant filed its opposition and the pertinent exhibits on February 10 2022 The Court held a
status conference on January 3 1 2022 and a hearing on the motion for preliminary and permanent
Hugh 1’ Mabe Ill 1.! a] v Board oszrectar: of 2022 VI Super 34U
Mahogany Run Condominium Anaemia»: Inc
Case No ST 22 CV 18
Memorandum Opinion
injunction on March 7 2022 The Coufl heard the sworn testimonies of Plaintiffs Hugh P Mabc
III Esquile and Seth S Stoffregen, Esquire William Quetel past Board member Angela
Callwood Geneial Manager for Mahogany Run Condominium Association Inc and Andrew
Capdeville, Esquire current Board President Plaintiffs exhibits 1 7 and 12 15 were admitted into
evidence For the following reasons the Court will grant the motion for injunctive relief due to a
Clea! showing that such relief is warranted when the factors are considered and weighed
1l2 At the time of the filing, the Mahogany Run Condominium Association was scheduled to
hold their annual condominium ownet 5’ meeting and 6161.th11 for the Board of Diiectors on March
19 2022 The Court postponed the March annual meeting until iesolution 0fthis matter Plaintiffs
seek to permanently enjoin the Board of Directors of the Mahogany Run Condominium
Association Inc ( Defendant or the Board ) from violating the Condominium Assoeidtion 5
By Laws, specifically Article IV Section 4 ( Section 4 ) and ask for declaratoryjudgment 0n the
inteipretation ofSection 4 The Board consists ofapproximately nine (9) members, who serve two
year staggered te1ms and have a term limit of two consecutive teims ' The dispute involves the
language of Section 4 which details the appointment of interim directors when there is a vacancy
on the Board Section 4 states
“Vacancies in the Board of Directors caused by any reason, including the addition
of a new Director or Directors, other than the removal of a Director by vote of the
Association shall be filled by a vote of the majority of the remaining Directors even
though less than a quomm at any meeting of the Board of Directors for the
1emainder of the term of the member being replaced until a successor shall be
elected at the next annual meeting of the Association to fill the unexpired portionZ
of the tenn
‘ Plaintitts Exhibit 15 at 8 By Law: oflhe Mahogany Rim Candnmm/um Association 2020 Article IV Part A Section
1
7 The wold portion exists in the 1980 Bylaws and 2009 Amended Bylaws In the 2020 Amended Bylaws, the term
‘portion wa: replaced with the term poaitiun The Court concludes this was an error and hold: the original [em
‘ponion av the proper term
2
Hugh P Mabe III e! a] | Board nthreclurt of 2022 VI Super 34H
Mahagany Run Condummmm Achia/wn Inc
Case No ST 22 CV 18
Memorandum Opinion
Plaintiffs interpretation of this language requires a replacement directur who was duly appointed
by the Board, to serve only until the next annual meeting, at which paint their successor shall be
elected They argue that the Board is limiting the number of vacant Board seats available by
interpreting Section 4 to mean that a replacement director serves until the end of the term the
vacating director was originally scheduled to serve Plaintiffs lequest the Court declares which
reading of Sectitm 4 is the correct interpretation
113 Plaintiffs seek declaratory judgment under Title 5 V I C § 1261 determining that Section
4 requires vacancies filled by vote of the Board ofDirectors serve anly until, and expire at the time
of the next annual meeting election by the owners The Court has discretion to declare [the]
rights status, and othei legal relations whether or not further relief is or could he claimed Pale
\ Government ofthe Virgin Islandx 2014 WL 7188999 *4 (V 1 Super Ct 2014)
114 Plaintiffs fimhei seek injunctive relief to permanently enjoin the Boaid to comply With the
declared meaning of Section 4 and require the Board to place on the ballot as open board seats any
board seats that had been filled pursuant to Section 4 When determining whether to issue a
preliminary injunction the trial court considers the following factors an 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 3 The Supreme
Court in Yusefv Hamed 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
J JRC & Ca v anes Trucking 3y: 1m
63 VI 544 553 (V1 2015)
3
Hugh P Maize ”I e! (11 v Board QfDIreLlars 12f 2022 VI Super 34U
Mahogany Run LundmmmumAssuclanun Inc
Case No ST 22 CV 18
Memorandum Opinion
merits is low if the Court determines that the moving patty s likelihood of irreparable harm is great
and the nonmoving party S likelihood ofirrepardble harm is Very low
I Four Factors of Granting Injunctive Relief
A Plaintiffs have shown success on the merits
115 First the Court must analyze the Plaintiffs probability of success on the merits When
addressing a reasonable probability of success on the mods the movant must show that it has a
teasonable chance or probability, of winning not that it will actually prevail on the merits at
trial ”4 The movant must introduce evidence making Out aprima fame case 5 The Supreme Coun
0f the Virgin Islands has held that a condominium association 5 bylaws and governing documents
are to be construed according to the general rules governing the construction of statutes and
contracts gee Weary v Lang ReefCandammiumAnnotation 57 V 1 163 170 (VI 2012) (citing
Smgh v Smgh 9 Cal Rptr 3D 4 27 28 (Cal Ct App 2004)) When the goveming documents of
condominium associations are Clea! and unambiguous, the Court must tollow their plain meaning
She Id at 169 To determine whether a contract is ambiguous we resort to principles of contiact
interpretation keeping in mind that our primary purpose is to ascenain and give effect to the
parties objective intent Phillip v Mart}: Mamamu 66 V1 612 624 (VI 2017) The Court
cannot rewrite [the Bylaws] by looking to evidence outside the four comers 0f the [Bylaws] to
determine the intent of the parties Id at 628
116 In their efforts to enjoin the Defendant from violating Section 4 of the Mahogany Run
Condominium Association 5 bylaws Plaintiffs argue that the last sentence of Section 4 is
41313101ch LLC v Morehmm. Real Extu/e Inv: LLC 62 V 1 168 187 (VI Super Ct 2015)
5 Yusefv Hamed 59V] 841 854 (VI 2013)
4
Hugh P Mabe III e! a] v Board a_fDIrecturs of 2022 VI Super 34U
Mahogany Run Condominium Amoclanon Inc
Case No ST 22 CV 18
Memorandum Opinion
unambiguous and controls the language preceding it The last sentence in pertinent part reads
[The interim Director appointed by the Board serves] for the remainder of the term of the member
being replaced until a successor shall be elected at the next annual meeting of the Association to
fill the unexpired Qortion of the tem1 Plaintiffs interpretation of Section 4 hinges on the words
until shallbe elected and unexpired Plaintiffs argue until as used in the sentence defines
the interim term for the vacancy replacement member to serve only up to [until] the date of the
next annual meeting when their successor shall be elected which further implies the mandate of
an election The term “until” is a subotdinating Lonjunction A subordinating conjunction is a
conjunction that joins a main clause and a clause which does not fonn a complete sentence by
itself 5 Plaintiffs also point to the word unexpiied and argue this demonstrates that the vacant
seat filled under Section 4 shall be vacated and open for election at the next annual meeting, not
at the expiration of the original term, otherwise the term “unexpired" would not be needed
Plaintiffs further argue that under the Board 5 interpretation the last phrase would be meaningless
and the drafter would have ended the sentence after the word replaced it the interim Director
were to serve for the entire unexpired term reading the sentence as [the Di1ect0r would serve]
for the remainder of the term of the member being replaced ”
117 To the contrary Defendant argues Section 4 is ambiguous therefore, extrinsic evidence
in the form of examining the Beard 5 past application is needed to determine how the bylaw
should be interpreted HD V.1 Holding Co Inc V CDP LLC
2018 WL 3213138 *4 (D VI
2018) Attorney Capdeville current Board President, testified that because of the ambiguity of
6 5'22 The Brilannica Dictionary 2022 Encyclopedia Brittanica, Inc (March 17 2022) (For example when in the
sentence Thty wen, glad when I amved ) https //www britannica com/dictionary/subordinating Conjunction
5
Hugh P Mabe III 2/ a] v Board afDlreLtam qf 2022 VI Super 34U
Mahogany Run Condominium Axsaczatxun Inc
Case No ST 22 CV 18
Memorandum Opinion
Section 4, the Board hired outside legal counsel to consult on the interpretation Defendant s
contention that this bylaw is ambiguous stems from the disputed application of Section 4 and
provides that the long standing practice of the Board is to allow for appointed members to seive
the duiation of the term cf the elected candidate they ate taking the place of Notably Angela
Callwoed, Mahogany Run Condominium Association s General Manager stated that this has been
the past practice foi decades that she is aware of however the witness could not provide a single
ballot or any other documentation to support that position
118 Mahogany Run further argues that under Plaintiffs interpretation the phrase fon the
remainder of the temi of the member being replaced is ignmed The Court disagrees Rather
Defendant s interpretation of the bylaw ignores the second clause of the sentence in its entirety
which states until a suecessor shall be elected at the next annual meeting of the Association to
fill the unexpired portion of the term The pluase to fill the unexpired portion of the term
conveys to the Court that the drafters intent was for the appointed member to only serve out the
remainder of the term until the next annual meeting which supports Plaintiffs interpretation
119 Plaintiffs further support their argument with an example from the 2018 annual meeting
election Michael Fitzsimmons (“Fitzsimmons”) filled Michelle Meade‘s (“Meade”) 2017 vacancy
and was placed on the March 2018 ballot although Meade 5 seat would not expire until March
2019 7 Plaintiffs use this example to argue that this is how the Board has applied Section 4 in the
past and that it should be applied in this manner for the upcoming election
1|10 Defendant contends that the long standing practice of the Board contradicts this
interpretation and that for decades the practice has been that the appointed director serves out the
7Plaintiffs Exhibit4
6
Hugh P Mabe III et al v BnardafDirLLtun Of 2022 VI Super 34U
Mal'mgany Run Crma'ummzum Association Inc
Case No ST 22 CV 18
Memorandum Opinion
remaining term of the member being replaced They further argue Fit7simmons name being
placed on the ballot was an anomaly an oversight of the General Manager Particularly since this
election occurred during the chaotic aflermath 0f the 2017 hurricanes However to support this
contention Defendant relied only on the testimonies of William Quctel Angela Callwood and
Attorney Capdeville Ms Callwood testified that she was the General Manager in 2018 and
prepared the documents fox the annual meeting including the ballots and biographies for the
candidates She stated that the ballots and biographies were sent to the members of the Board and
the candidates for approval, prior to distribution Michael Fitzsimmons was on the 2018 ballot
despite the Board 5 current stance that he should not have been Ms Callwood testified that this
was a clerical error on her part and should not have happened However, Plaintiffs argue that this
is the most recent election where a similar election occurred and the only election for which there
is documentation to support that this happened therefore the 2018 election should not only be the
standaxd pxactice for vacancy appointments 0n the Board but is also the most plausible course of
action which fosters an open democratic voting process Assuming urguenda, this was in fact the
historic practice, it does not mean such practice was in compliance with the bylaw In fact, it was
not Section 4 although equivocal and perhaps inaltfully drafted is not so ambiguous as to adopt
Defendant s interpretation Since Defendant could not provide any evidence to shew otherwise
with the exception (1er Quetel s uncorroborated testimony the Court agrees with Plaintiffs
1111 Here Plaintiffs have set forth a plausible interpretation of the plain meaning of Section 4
and have provided a well documented example of the previous application of Sectitm 4 by the
Board which supports their interpretation Conversely, Mahogany Run could not adequately
demonstrate that the historical practice of the Board negates this interpretation Yet, even if there
7
Hugh P Maize III 21 (II V Board othrectars of 2022 VI Super 34U
Mahogany Run Condmnmmm Assncmlian Inc
Case No ST 22 CV 18
Memorandum Opinion
were a plethora of examples set forth by the Board such practice would still be a violation of
Section 4 Accoidingly the Court finds that Plaintiffs have shown success on the merits
B Plaintiffs have shown the likelihood ofirreparable harm
1112 Plaintiffs argue that ifthe Board is not enjoined Plaintiffs will suffer irreparable harm as a
resu1t of being denied their electoral rights for the next annual meeting They argue that candidates
for the election are limited in the opportunity to serve on the Board and that owners are
disenfranchised by the denial of their electoral rights by the Board 5 incorrect interpretation of
Section 4 Plaintiffs are conect
1113 Under Anicle 1, Section 4 of the Mahogany Run Condominium Association bylaws each
unit is entitled to a vote in the Board election 8 The bylaw states in pertinent pan
Each unit shall be enlllled to a vote, which shall be the percentage assigned in the
Declaration, which may be cast by the owner the owner 5 spouse or by a lawful
proxy as provided below
As a guaranteed tight in the bylaws of the Association owners also have the duty to ensure the
Board abides by the bylaws Regardless of past application of the bylaws owneis ought to have
confidence in a properly conducted open and fair electoral process Virgin Islands courts have held
that a violation of the bylaws by the condominium board of directors is more serious than a
Violation by an individual owner because there is greater potential for harm Sm Board aszrectors
ofthbuh McGuire 16VI 300 309 (Terr Ct 1979) In fact the underlying assumption of
[t]he entire Condominium Act is that the board will comply with the declarations and bylaws of
the condominium association Frank v Enrietta 2013 WL 5888503 *4 (D VI 2013) qualmg
McGuzre at 309 Further all apartment owners purchase units relying on the covenants and
3 Plaintiffs Exhibit 15 at 4
8
Hugh P Mabe III at a/ v Board ofDIrectnrt of 2022 VI Super 34U
Mahogany Run Condominium A s socially" Inc
Case No ST 22 CV 18
Memorandum Opinion
conditions contained in the declaration and bylaws of record and on the assumption that they will
be enforced [d
1114 Here the Court agrees with Plaintiffs that unit owners are entitled to the rights guaranteed
to them in the bylaws of the Association and the bylaws must be followed according to theii plain
meaning There is no question as to the meaning of Article 1, Section 4 which provides owners the
right to vote in Board elections “[V]0ting is of the most fundamental significance under our
constitutional structure ” Illinon Rd 0/ Electlans v Socialist Workers Party, 440 U S 173, 184
(1979) The right to vote is the right to participate it is also the right to speak but more
impeltantly the right to be heard We must tread carefully on that right or we risk the unnecessary
and unjustified muting ofthe public voice Boardman \ hsteva 323 So 2d 259 263 (Fla 1975)
Unit owners have the preiogative to have their voices heard and to elect the candidate which best
represents them and their interests analogous with the tights to vote in any republic The Board
has a duty to guarantee fair elections to piotect this right
1115 Yet, Defendant s interpretation ofAttiCle IV Section 4 although Well intended, infringes
on this right Under Defendant s inteipretation the Board appointed member could serve almost
two years on the boaxd if the vacancy opens shonly after the election This harms the owners
ability to be able to vote for the candidates which they believe represent them best instead, the
owners could be forced to have an unelected board member for almost two years which the
majority may disapprove of completely undermining the democratic process set out in the bylaws
Defendant argues under the bylaws, owners can vote out board members which they disapprove
of However Defendant also argues that their interpretation of Section 4 should be upheld because
the annual meeting ofien lacks a quorum and thus a new interpretation which changes the standard
9
Hugh P Mal". III LI al v Board ofDnectars 0f 2022 VI Super 34U
Mahagany Run Cundammmm Assaclalmn Inc
Case No ST 22 CV 18
Memorandum Opinion
practice could atfect the management of the Association The Conn disagrees because while it
may be convenient and practical to adopt the Board 5 practices of allowing an interim appointee
to fill the unexpired term of a director such practice does not eomport with the bylaw
1116 If an appointment occurs even with a lack of quorum the Association is lefl with no choice
but to accept the appointment of the interim member The Coutt is not lost on the confidence that
condominium owners may have within the Board 3 ability to appoint interim members who would
have the best interest of the Association However this interim appointment should not usurp the
owners’ rights to duly elect their representatives at the annual meetings Ifthere is continuously a
lack et a quotum at the meetings then Defendant s pioposal that owners can simply vote out a
board member they disapprove of is an inadequate altemative to applying Section 4 pdttieularly
when the appropriate solution would be to give owners the right to vote in the candidates they
choose to represent them lather than undergoing the burdensome task of Lalling a special meeting
to unseat a member Thus, Plaintiffs have shown ineparable harm
C Balancing of harm to between both parties
1117 As to the third factor the balancing ofharms between the parties the Court looks at
whether the nonmoving patty will suffer irreparable harm ifthis injunction is issued, and if so to
what extent 9 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 1° Defendant argues the Board
will struggle to manage the affairs of the Association under Plaintiffs interpretation due to a lack
of continuity However even under this interpretation where there will be as many as six (6) open
" S'BRMCUA LLC 62 VI at 188
m Id
10
Hugh P Mabe III at a! v Baard ofDirecturv of 2022 V] Super 34U
Mahogany Run CnndammmmAnnotation Inc
Case No ST 22 CV 18
Memorandum Opinion
seats fin election at the 2022 election, there will still be three (3) continuing directors including
the Board President Further, the experienced General Managei who has worked with the
Association since May of 2010 and through multiple Board changes adds to the continuity and
stability of the Board Additionally the structure 0fthe Board which staggers the seats so as many
as five or four seats can be filled every year and only allows for two consecutive terms dictates
that transformation of the Board at every annual meeting is certain
1118 Defendant further contends they will be banned under Plaintiffs interpretation of Section
4 because this interpietation would [equiie more people to Volunteer to be on the Board Serving
on the Board is a voluntary sewice, and as such asking the appointed interim director t0 only sews
a short term until the next annual meeting Cleates a burden on the volunteer and the1ef01e
disincentivizes members from serving in the future The Court recognizes the hardship on the
intciim diiectors but this haidship does not supersede the condominium owners right to Vote
guaranteed under the bylaws Neither is there any evidence to suggest that vacating a seat is a
regular occurrence or to suggest that allowing the seat to remain empty for a short period of time
is unduly burdensome (e g a director vacating the position after 20 months into his or her 2 year
tenn and the Board not being able to fill the interim position) Additionally, nothing suggests the
interim director is piecluded from their name being on the ballot to continue his or her voluntary
service Considering the de rmmrmv costs associated with revising ballots or the tabulation thereof
the Board will have continuity and minimal to no disruptions given the Board President and two
other members would remain on the Board Moreover, the fact that the Board has implemented
Section 4 in alignment with Plaintiffs reading of Section 4 in the recent past, the Court finds there
ll
Hugh P MMIIL [[1 L! a] v Board afDIrectms Hf 2022 VI Super 34U
Mahogany Run Condummmm Assuciation Inc
Case No ST 22 CV 18
Memorandum Opinion
is no likelihood of immediate and irreparable harm to Defendant when weighing the balance of
the harms
D The public has a significant interest in the Board abiding by the bylaws of the
Association
1|l9 Plaintiffs argue that the public has a significant intelest in enjoining the Board because an
incorrect interpretation of Section 4 would be out of compliance with the Virgin Islands
Condominium Act Title 28 V I C § 906 explicitly authorizes a suit by any apartment owner to
enfowe the bylaws and administrative rules in addition to the covenants conditions and restrictions
in the declaration or deed to an owner’s apartment " McGuire at 309 This Court has previously
held that there is a compelling public policy argument for allowing condominium owners to
enforce the Board of Directors to abide by the declarations or bylaws of the Association Id Here,
Plaintiffs have adequately shown that unit owners am entitled to the right to Vote” at every annual
meeting and that the Board 5 interpretation of Section 4 inflinges on that right Accordingly the
Court finds them is a significant public interest in enjoining the Board and that all foul factors
weigh in favor of granting injunctive relief to the Plaintiffs
II Declaratory Judgment
1|20 While Section 4 may be perceived as ambiguous or inanfully drafted it is not so vague
that the Court needs to supplant its own interpretation and overlaok the plain meaning Section 4
in relevant part states that a vacancy
shall be filled by a vote of the majority of the remaining Directors even though
less than a quorum at any meeting of the Board of Directors for remainder of the
term of the member being replaced until a tuccetwr Aha” be elected at the next
annual meeting of the Association Io fill the unexpiredportian of the term
'1 Plaintiffs Exhibit 15 at4
12
Hugh P Mabe III 2! al v Board quIrecfars 0/ 2022 VI Super 34U
Mahogany Run Candummium ASSDCIOIIDM Inc
Case No ST 22 CV 18
Memorandum Opmion
The drafter included two clauses adequately describing that the interim director serves until the
next annual meeting Where the successor shall be elected to fill the unexpired portion of the original
director 5 term For these reasons Article IV Section 4 must be declared sufficiently warded to
determine that those vacancies filled by vote of the Board of Directors are Open for the next annual
meeting election and the Board of Directors shall place such seats on the haunt fol the next election
as a matter of law An appropriate Order shall f0
(
Dated March I 2022 W7 II _‘l A o
Renee u ‘ I s Carty
Judge 0 the ‘ -erior Conn
ofthe Vir Islands
ATTEST
Tamara Charles
Cler ofthe Con .
By WK ( W
Donna D Donovan
Court Clerk Supervise ‘3 / )6/ 3099‘
13
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
HUGH P MABE Ill and SETH S STOFFREGEN ) CASE NO ST 22 CV 018
)
Plaintiffs ) ACTION FOR DECLARATORY
VS ) JUDGMENT TEMPORARY
) PRELIMINARY and PERMANENT
BOARD OF DIRECTORS OF ) INJUNCTION
MAHOGANY RUN CONDOMINIUM )
ASSOCIATION INC ) 2022 VI Super 34U
Defendant
ORDER
The Couit having issued a Memorandum Opinion on this date it is hereby
ORDERED that Plaintiffs’ motion for injunctive relief is GRANTED; and it is further
ORDERED that the Board of Directors of the Mahogany Run Condominium Association,
Inc is PERMANENTLY ENJOINED from excluding Board appointed Vacancy replacement
board members from the subsequent annual meeting election, and it is further
ORDERED that those vacancies filled by vote of the Board of Directors are open for the
2022 annual meeting election and that the Board of Directors shall place such seats on the ballot
for this election and it is fuither
ORDERED that copies of this Order shall be distributed to Hugh P Mabe III Seth S
Stoffregen Maria T Hodge Esquire and the Board of Directors of Mahogany Run Condominium
Association, Inc (Andrew Capdeville, Esquire)
/
Dated March/7 2022 W W
Renee u bs Carty
Judge the uperior Court
ATTFST of the Viv Islands
Ta ra Charics
Cier f the Courtk: W
By M
Do m D Donovan
Court Clerk Sunenisor 43 / ’8 IQOQJ’