e.-f.) that “the manager of each [OPA] facility . . . has full and complete control of all

members. Tr. at p. 15. Apart from requiring that Board members always act within the authority

given to them in the governing documents, the standards set forth in Resolution B-08 include

“promot[ing] uniform enforcement of the [governing documents] when conducting Association

business.” Defendants’ purported “ban” violates both of those ethical standards – as Horn openly

admitted during the June 9 meeting, it is outside the bounds of authority granted in the governing

documents; and as developed more fully above, it represents an inconsistent, unprecedented,

targeted and arbitrary action, against only one OPA member who has been a political adversary

of Defendants, purportedly to further public safety and “family-friendly culture.”

I. The history of Resolution B-08 (Plaintiff’s Exhibit 2) further demonstrates the

opportunistic targeting of Mr. Janasek – it was passed in 2018 with the express support of Horn,

then repealed in June 2021 by Perrone, Daly, and Horn (and others on the Board) after it had

been invoked in connection with a complaint by a female OPA employee of mistreatment by

Larry Perrone, including hostility and yelling. Plaintiff’s Exhibits 1-4. Tr., at pp. Notably, that

complaint against Mr. Perrone – instead of leading to any “ban,” censure, or other action by the

Board against Perrone (a member and even leader of the Board majority at the time) – led to the

appointment of an investigating outside law firm, hired by the Board, no doubt, at considerable

expense to the OPA, and a subsequent finding that the female employee had simply been “thin-

skinned” in the face of Perrone’s treatment. Tr. at pp. 22-24, 64-65, 174.

Fifth, the notion advanced by Defendants – to the effect that, as legal title holder to the

Beach Club, Golf Club, and Yacht Club properties (and other OPA amenities), the OPA (or more

specifically its Board) may unilaterally and selectively regulate and deny use of and access to

those amenities just as any other business/property owner may do – is patently wrong, at least as

The governing documents, including the Declaration as a recorded instrument and the

Charter as an SDAT-filed instrument, the Bylaws, and Resolution M-02, constitute and contain

clear and express limitations upon the OPA’s common area (amenity) “ownership” rights in this

regard (vis-à-vis OPA members). Again, under Section 11.A. of the Declaration (Plaintiff’s

Exhibit 15, at p. 10), Mr. Janasek and all other OPA members have a recorded easement right

“for the use and enjoyment” of all OPA amenities. This dynamic and interplay of rights, as

between the OPA and its members, simply does not exist in the context of other restaurant and

bar operators and their denial of service to a particular customer.

As the Court of Special Appeals held in Sea Watch Stores Ltd. Liab. Co. v. Council of

Unit Owners, 115 Md. App. 5 (1997), “real property held in condominium [or HOA] ownership

retains all the incidents of real property . . . [but] when . . . restrictions . . . are imposed through

the condominium [or HOA] documents, [property owned by the condominium or HOA is]

subject to the restrictions imposed by each manner of creation. ”

In Ridgely Condominium Association v. Smyrnioudis, 105 Md. App. 404, at fn. 2 (1995),

the Court of Special Appeals considered the propriety of a Board resolution (and subsequent

Bylaw amendment) that prohibited the customers of commercial unit owners from using the

condominium building lobby. The Court held: “To deny the use of the lobby [by] clients of the

commercial [unit] owners constitutes an ultra vires taking [by the Condominium Board] of a

portion of [those unit owners’] percentage interest in the common areas in derogation of the

Ridgley Condominium declaration. ” Likewise, in the present case, banning Plaintiff from

“common area” amenities – the Beach Club, the Yacht Club, and the Golf Club – in which

Plaintiff has recorded easement rights of use and enjoyment, in derogation of express provisions

constitutes an ultra vires (not to mention targeted and arbitrary) taking of Plaintiff’s real property

rights by the Board majority.

II. THE “BUSINESS JUDGMENT RULE” PROVIDES NO COVER TO DEFENDANTS IN THIS CASE.

The business judgment rule, where it applies, does not insulate Board members from the

kind of decision-making that is at issue in this case. See Mountain Manor Realty, Inc. v.

Buccheri, 55 Md. App. 185, 194 (1983) (a board must be properly exercising its powers in order

for its decisions to be protected under the business judgment rule; when the board is not acting in

accordance with basic “ground rules” governing its authority, its decision-making is not

protected by the business judgment rule); Black v. Fox Hills, 90 Md. App. 75, 82 (1992) (making

clear that it is only the “legitimate” decisions of board members that may properly be protected

under the business judgment rule); Tackney v. U.S. Naval Academy Alumni Ass’n, Inc., 408 Md.

700 (2009) and NAACP v. Golding, 342 Md. 663, 678 (1996) (holding that Maryland courts will

and can properly intervene in the affairs of non-stock Maryland corporations where there is “bad

faith, fraud, irregularity, or arbitrariness”); Mena v. Council of Unit Owners of the Garden

Condo., 220 Md. App. 1192 (2020); Reiner v. Ehrlich, 212 Md. App. 142 (2013). See also,

Worcester County Circuit Court Ruling in Richard Farr v. OPA, et al., Case No. C-23-CV-21-

000127 (January 6, 2022) (Copy attached hereto as Exhibit C).

“[I]n Tackney v. United States Naval Academy, the court citing Golding, indicated that it

would apply the business judgment rule and intervene in the dispute only if the Board’s action

was ‘fraudulent or arbitrary.’ 408 Md. 700, 715 (2009). In Golding, fraud was interpreted to

include action unsupported by facts or otherwise arbitrary. 342 Md. 663, 677 (1996).” (Page 8 of

Exhibit C). “The Golding court noted that if an organization acts inconsistently with its own

(Page 9 of Exhibit C).

As discussed above and as otherwise presented in this case, the decision-making at issue

in this case was without a good faith legal (or factual) basis, was unprecedented, arbitrary and

selective, was not based on any historically consistent pattern, unfairly targeted Plaintiff, and

violated express and directly applicable provisions of the governing documents (and as explained

below, the express public policy of this State). As such it was illegitimate and un-protected by

the business judgment rule as that rule has been adopted and articulated by Courts in this State.

Specific and uncontroverted evidence presented so far demonstrating the arbitrariness

(and bad faith) of the Board majority includes:

1) The Board majority convened a special meeting for the purpose of imposing the

purported ban only after learning that the altercation involved Tom Janasek, while they had

previously only suggested to Ms. Wheatley that she seek law enforcement intervention.

2) During the special meeting, Dr. Horn openly admitted that the purported ban was

outside the scope of “relief” and powers provided by the governing documents.

3) None of the Board members supporting the ban cited to any provision of the

governing documents that supported or authorized the action being taken.

4) Even in the public statement made after the special meeting by Dr. Horn and in

the June 10 notice letter to Mr. Janasek, there was no citation to any governing document

provision authorizing the Board-imposed ban.

5) The utter arbitrariness of the purported ban is dramatic – i) in at least the past 22

years, no such ban has ever before been imposed by the Board against any OPA member, for any

reason other than non-payment of OPA charges; ii) no such ban (purportedly to protect public

considered) as to the many OPA members/residents getting into arguments at OPA facilities or,

far worse, committing serious crimes in Ocean Pines, including repeat DUI offenses, sex

offenses, assault, domestic violence, and child pornography offenses; iii) when Board majority

member Larry Perrone was charged with being verbally abusive to a female OPA employee,

with the support of Daly, Horn, and their allies, no action was taken against him, indeed

thereafter, they repealed in its entirety the Board Resolution (B-08) that had regulated Board

conduct and provided employees with a mechanism for formally complaining about Board

conduct; iv) the terms of the ban themselves, purportedly intended to promote public safety and

the “family-friendly culture” of Ocean Pines, are arbitrary – Mr. Janasek is banned from only

three of the many OPA facilities; he is banned purportedly (and falsely) out of a concern about

alcohol consumption, but the ban prohibits him from entering the subject facilities rather than

simply from consuming alcohol there; he is banned for only 90 days, despite the broad and

general public safety threat that Defendants falsely claim that Mr. Janasek presents.

6) The Board majority acted in direct contravention of express provisions in the

Declaration, the Charter (as amended and restated), and the Bylaws (as amended earlier this

year), and they did so without explaining how or why, in their view, they were not constrained

by those express provisions.

7) Neither Horn, Perrone, Daly, Peck, or Wheatley testified at the preliminary

injunction hearing (or stated in any supporting Affidavit filed before the hearing) that they had

followed advice of counsel in formulating and/or imposing the purported “ban. ” In contrast, in

the Farr case, in which Mr. Tucker testified and attended all evidentiary hearings (including two

preliminary injunction hearings), Perrone, Daly, and Horn had asserted unsuccessfully in defense

inferable here – though not yet proven conclusively – that Horn, Perrone, Daly, Peck, and

Wheatley acted contrary to legal advice in imposing the purported ban.

8) OPA attorney Jeremy Tucker did not testify and was not even present at the

preliminary injunction hearing, to support the purported “ban” or to testify that he sanctioned or

approved or recommended such action by the Board majority.

9) Dr. Horn made knowingly misleading statements at the June 9 meeting, in

connection with publicly advocating for the ban, that the governing documents are “50 years

old” and that so-called OPA “founders” could not have imagined a verbal altercation at a

bar/restaurant facility when they drafted the governing documents (which she conceded do not

authorize the purported ban). She admitted at the preliminary injunction hearing that the Charter,

the By-Laws, and Resolution M-02 are nowhere near “50 years old”; that she, herself, had been

involved in the drafting of some of those documents; that she has no idea who the so-called

“founders” are to whom she had referred (other than current Board members); and that she never

spoke with any “founder” to determine their intent or mindset on the subject of verbal

altercations occurring at Ocean Pines amenities. (Tr., at pp. 59-61).

10) As this Honorable Court noted in the Rick Farr case, the Court of Appeals held in

Golding that the policy of minimizing judicial involvement in the affairs of private organizations

(including HOAs) “does not mean that members [of such organizations] have no guarantee of

procedural fairness.” Exhibit C, at pp.8-9 (citing Golding at 678). Having been chastised by this

Court less than a year ago for failing to afford any procedural fairness to Mr. Farr (in connection

with wrongly disqualifying his candidacy), Daly, Perrone, and Horn (this time with their

appointed allies, Peck and Wheatley) afforded zero procedural fairness to Mr. Janasek before

hearing or appeal rights, no direct prior notice, and no adjudicatory process at all. And the Board

Resolution that had made it an ethical violation for members of the Board to act outside of their

express authority (as Horn admitted during the June 9 meeting they were doing) (Resolution B-

08) had been repealed by Horn, Perrone, Daly (and others) after Perrone had been subjected to its

operative provisions (and also after they had previously deployed that Resolution offensively in

an effort to remove Mr. Janasek from the Board).

11) As in the Farr case, the bad faith continues as this case proceeds – during a July

15 OPA Bylaw Committee meeting, in part out of a concern that there could be adverse

implications for her position in this case, Horn quashed discussion by that committee of adding

an appeal process into Resolution M-02 (the one authorizing facilities managers and/or the OPA

general manager to suspend a member’s right to use amenities for declared covenant or rule

violations). Although there is a new Maryland law in effect (H.B. 615, see Exhibit D) that

requires all Maryland HOAs to provide extensive procedural rights to HOA members before

“infringing upon” any of their substantive rights, and the changes being discussed by the Bylaw

committee on July 15 (see Plaintiff’s Exhibit 18) would have been at least partly in accordance

with that new law (which is effective as to action taken against members on or after October 1,

2022), Horn quashed any discussion of that, at least in part, to protect her own position as a

Defendant in this pending case.

12) It is notable that the action taken by the Board majority at issue in this case – the

purported ban and the manner in which it was imposed – would directly and materially violate

the provisions of H.B. 615, had that new law operatively applied to the Board actions (taken only

a few months earlier than October 2022). But importantly, that new law was approved and

previously passed by the General Assembly. Accordingly, on June 9, 2022, when the “ban” was

summarily imposed by the Board majority as it was, it was in direct contravention of the

provisions of the newly approved H.B. 615, and therefore the expressed public policy of this

State, even if the new law’s provisions would not be prospectively “operative” until

October 2022.

3

13) The Board majority members who testified at the preliminary injunction hearing

admitted that, when they voted in favor of the purported ban, they understood full-well that the

ban would interfere directly with Mr. Janasek’s tap-servicing work at the Ocean Pines amenities.

In other words, Defendants were knowingly and intentionally causing economic harm to

Plaintiff’s business interests by imposing the arbitrary and unauthorized ban.

III. SECTION 5-422 OF THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE AND SECTION 14118 OF THE REAL PROPERTY ARTICLE DO NOT INSULATE THE INDIVIDUAL DEFENDANTS FROM PLAINTIFF’S CLAIMS.

Defendants have argued that they are immunized from liability for Plaintiff’s claims

under section 5-422 of the Courts and Judicial Proceedings Article and section 14-118 of the

Real Property Article. They are wrong.

Section 5-422 (of the Courts and Judicial Proceedings Article) provides that directors

and officers of a “governing body” (as that term is defined in section 14-118 of the Real

Property Article4) “may not be held personally liable for injuries sustained by a party if the

3 Pursuant to Maryland Rule 5-201, Plaintiff hereby asks the Court to take judicial notice of Exhibits C and D; and based on the nature of those documents and the fact that Plaintiff has asked the Court to take judicial notice of them, under Rule 5-201(d), Plaintiff respectfully submits that the Court must take judicial notice thereof.

4 Under Section 14-118 of the Real Property Article, the term “governing body” is defined as a person who has the authority to enforce: i) a whole condominium declaration; ii) articles of incorporation of a council of unit owners, of a cooperative housing corporation, or of a homeowners association; or iii) bylaws, rules, and regulations of a whole condominium, cooperative housing corporation, or homeowners association. Md. Code, Real Property, §14118(a)(1). “Governing body” is also defined under that statute as including a homeowners association, a whole

faith, and 3) did not act in a reckless, wanton, or grossly negligent manner.” Md. Code, Courts

and Judicial Proceedings, §5-422(c). Except as set forth in that provision, “a person sustaining

an injury as a result of a tortious act of an officer or director of a governing body while the

officer or director is acting within the scope of [his] duties may recover only in an action brought

against the governing body for the actual damages sustained.” Md. Code, Courts and Judicial

Proceedings, §5-422(a). Under section 14-118 of the Real Property Article, “a person sustaining

an injury as a result of the tortious act of an officer or director of a governing body while the

officer or director is acting within the scope of the officer’s or director’s duties may recover only

in an action brought against the governing body for the damages described” in section 5-422(b)

of the Courts and Judicial Proceedings Article. Md. Code, Real Property, §14-118(b).

Accordingly, under those statutory provisions, in regard to tort claims, officers and

directors of a whole condominium association, a homeowners association, and a cooperative

housing corporation may not be sued personally, and may not be held personally liable, for the

claimant’s tort damages; rather, such claimant must (and may properly) bring his tort action for

money damages against the governing body itself of the whole condominium association, a

homeowners association, and a cooperative housing corporation. Those provisions plainly do

not govern or limit in any way: 1) claims against a homeowners association itself (the

OPA), as opposed to its Board members; 2) non-tort claims against officers and directors of

any governing body, e.g., claims for declaratory and injunctive relief and for breach of

contract; or 3) claims arising from conduct of directors and officers that is in bad faith and

outside of the proper scope of their duties, i.e., conduct that is not authorized under the

condominium council of unit owners, and a cooperative housing corporation. Md. Code, Real Property, §14118(a)(2).

Those limitations on the scope and effect of section 5-422 (of the Courts and Judicial

Proceedings Article) and section 14-118 (of the Real Property Article) exist for the obvious

reason that directors who act in violation of the terms and conditions of governing documents

(bylaws, declarations, resolutions, other instruments) and/or statutes must be subject to (and

cannot properly be beyond the reach of) declaratory and injunctive orders of Courts having

jurisdiction, and other appropriate relief in, for example, contract (and other non-tort) actions.

Accordingly, contrary to what Defendants have urged, they are not insulated from

Plaintiff’s claims under section 5-422 (of the Courts and Judicial Proceedings Article) and/or

section 14-118 (of the Real Property Article).

IV. SECTION 2-405.1 OF THE CORPORATIONS AND ASSOCIATIONS ARTICLE AND SECTION 5417 OF THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE DO NOT INSULATE THE INDIVIDUAL DEFENDANTS FROM PLAINTIFF’S CLAIMS.

The protections afforded to officers and directors under section 2-405.1 of the

Corporations and Associations Article and section 5-417 of the Courts and Judicial Proceedings

Article do not apply in this context.

Those provisions protect directors only when they are acting in good faith, in the best

interests of the entity, and with the care “that an ordinarily prudent person in a like position”

would use. The allegations set forth in Plaintiff’s Complaint (together with inferences drawn

from them) make clear that the challenged conduct of Defendants was in bad faith; it was in

direct violation of the OPA governing documents; and it was in conscious disregard of applicable

governing document provisions limiting the Board’s power in this context.

Also, section 2-405.1 of the Corporations and Associations Article and section 5-417 of

the Courts and Judicial Proceedings Article do nothing to insulate the OPA itself from

V. THE CRITERIA BEARING ON PRELIMINARY INJUNCTIVE RELIEF WEIGH DECIDEDLYIN FAVOR OF PLAINTIFF.

Likelihood of success on the merits: Plaintiff refers the Court to the substantive merits

discussion above and in Plaintiff’s other filed papers; Plaintiff plainly presents an eminently

stronger case, legally and factually, than as presented by Defendants, and should prevail in the

final analysis. At minimum, this criteria for preliminary injunctive relief weighs strongly in favor

of Plaintiff.

Irreparable harm: Again, if Plaintiff “serves out” the 90-day “ban” during the pendency

of the case, and thereafter prevails as he likely should, he will plainly and inarguably have been

irreparably harmed. There will be no conceivable way for him to “get back” those 90 days of

amenity use and access, ever, and no matter how the Court might ultimately remedy the situation

after trial.

Balance of harm: Again, this criterion weighs decidedly (even completely) in Plaintiff’s

favor for the same or similar reasons that “irreparable harm” does. As stated, Plaintiff will be

irreparably harmed if the “ban” is imposed while the case is pending; Plaintiff will also be

economically harmed by not being able to perform his tap-servicing duties during the 90 days,

including being at risk of losing the account entirely. But Defendants will suffer no harm at all –

none – if the ban is enjoined during the pendency of the case. In the unlikely event that

Defendants eventually prevail in this case, Plaintiff can “serve out” the 90-day suspension at that

juncture, and Defendants will not have suffered any harm.

Public interest: The interests of the OPA membership at large will be served by the

requested preliminary injunction, which will maintain the status quo until the Court rules finally

upon the Board’s unauthorized conduct in banning a member from OPA amenities without the

the parties (i.e., just prior to June 9, 2022) – will serve and advance the public interest much

more than a temporary sanctioning by this Court, through denial of a preliminary injunction, of

the Board’s unauthorized, arbitrary, and summary action against an OPA member’s contractual

rights.

Defendants have feigned that the 90-day ban is necessary to protect the Ocean Pines

community, including Ms. Wheatley5 , from Mr. Janacek; and this will presumably be their

“public interest” argument as to the requested preliminary injunction. For all the previously

discussed reasons, this is a contrived after-the-fact rationalization for the purported (and

unauthorized) “ban. ” The following points undermine such “public interest” contention:

1) The actual events of the incident at issue, as reflected in all of the evidence before

the Court, do not support the Board majority’s claim of an immediate and compelling threat to

public safety or “family-friendly culture” affecting all of Ocean Pines, the customer base at its

food and beverage facilities, or any of its individual members. The purported “threat” is

unfounded and disingenuous, if not willfully made up by the Board majority.

2) The incident occurred on May 20, 2022. No “ban” has been in place since then,

other than during the 11-day period between June 10 (when the written notice of the “ban” was

issued to Mr. Janasek) and June 21 (when the TRO was issued). As of the filing of this

Memorandum on or about September 15, some four months after May 20th , no conduct of Mr.

Janasek has created any public safety issue or “family-friendly culture” issue, anywhere in Ocean

5 Plaintiff takes no position as to what Ms. Wheatley has expressed as her subjective concerns in regard to Mr. Janasek and being in his presence. But Ms. Wheatley ’s subjective feelings/fears in this regard have no bearing on the matter before the Court. This Honorable Court is not deciding, as the Worcester County District Court previously did, whether and on what terms to grant a Peace Order for the protection of Ms. Wheatley. It is not deciding, as Ocean Pines Police previously did, whether to pursue some criminal case against Mr. Janasek. It is, instead, sitting as a civil Court, in equity, deciding only whether the Board majority had authority to impose the purported “ban” against Mr. Janasek.

Wheatley, Mr. Janasek presents no legitimate public safety threat, to anyone in Ocean Pines or

outside of Ocean Pines.

3) The Peace Order issued by the Court, which remains in place until December

2022, prohibits any contact between Mr. Janasek and Ms. Wheatley, and the “ban” would add

nothing from a purported “protection” standpoint to the that Peace Order.

4) Although Ms. Wheatley claims to have generally stayed away from Ocean Pines

amenities out of a concern that Mr. Janasek may be there, the record reflects that she has been to

the Yacht Club, the Beach Club, and the Golf Club since May 20, 2022, without adverse

consequence, even while there has been no enforceable “ban” against Mr. Janasek being there.

5) As developed more fully above, there are dozens of egregious criminal acts – sex

offenses, assaults, prostitution, drug offenses – being committed all the time in Ocean Pines, by

Ocean Pines members and residents, which present real and significant public safety risks and

threats, and real and direct impact upon the purported “family-friendly ” culture of the Pines.

Never, in regard to any of those crimes, has the Board ever convened a special meeting,

investigated the conduct of the involved Ocean Pines members/residents, and/or taken action

against them purportedly pursuant to the governing documents. Not ever. This is because, until

they saw an opportunity to punish Tom Janasek, the Board majority and their predecessors

understood and adhered to the express limitations on their authority.

CONCLUSION

Tom Janasek, like all other members in good standing of the OPA, has a contractual/

easement right and property interest to use, enjoy, and be present at all Ocean Pines amenities,

subject to any duly and properly adopted (and properly enforced) rules and covenants limiting or

day “ban” from using OPA food and beverage amenities – was and is unauthorized and beyond

the scope of the Board’s power under clear and express provisions of the Declaration, Charter,

Bylaws, and Resolutions. Under well-established rules of contract interpretation, the express

limitations on the Board’s authority to suspend a member’s contractual/easement right to use

OPA amenities are controlling here; and they have primacy over what the Board majority claims

(after the fact and in unprecedented and selective fashion) to be implicitly within its authority to

(purportedly) advance the interests of public safety and promote a “family-friendly culture” in

Ocean Pines.

The evidence adduced to date is clear that the Board majority has knowingly acted

contrary to express provisions of the governing documents; their actions are (and were on June 9,

2022) in contravention of the stated public policy of this State (as reflected in H.B. 615) and

applicable Maryland law; the Board majority took their bad faith action only after learning of

Tom Janasek’s involvement in the May 20th incident at the Yacht Club; and they

opportunistically did so in unprecedented fashion, having never before revoked an OPA

member’s right to use OPA amenities for reasons other than non-payment of OPA charges.

Defendants claim disingenuously to have banned Mr. Janasek out of a concern for the public

safety and welfare of the Ocean Pines community, a concern that has no real support in the

record, while they and their predecessor Board members have ignored completely the violent

offenders, registered sex offenders, and drunk drivers living (and committing crimes) in Ocean

Pines.

This situation represents another in a troubling pattern of ultra vires, illegitimate, bad

faith, and ends-oriented acts by this Board majority (Perrone, Horn, Daly, and allies) – first there

testified that she was and is (subjectively) fearful of Mr. Janasek as a result of the incident; and

9) Ocean Pines police saw no basis for any criminal charge of any kind. The foregoing presents

no legitimate or genuine basis – none at all – for any broad “public safety” threat or risk, posed

by Mr. Janasek, and impacting the OPA membership at large and/or patrons of any OPA

amenities. 7

Defendants and their supporters may contend that, no matter what the legalities are or

what the governing documents say, on May 20th at the Yacht Club, Plaintiff yelled at Ms.

Wheatley, possibly using inappropriate profanities and/or calling her names, and possibly

causing her to be fearful of Plaintiff (in that moment or more generally); and that, on that basis

alone, the Board could rightly punish and “make an example” of Plaintiff, and seek to deter

similar conduct by others, by selectively imposing the unprecedented and unauthorized “ban” upon him. After all, they might contend, the May 20th incident was not Mr. Janasek’s “finest

hour” and “he brought this upon himself.” Setting aside the profound legal invalidity of this line

of thought/argument, it takes Ocean Pines down a fundamentally perilous path. To permit the

Board majority (and consequently any Board majority, at any time) to summarily impose a “ban”

of this kind, as it sees fit and on terms it alone deems appropriate, against any OPA member it

selectively and unilaterally regards as having behaved in an unacceptable way, is tantamount to

anointing the OPA Board as a sort of “Big Brother behavioral police” regulating members’

conduct and meting out punishment against them, to the cheers of some segment of the

electorate, under the vague and subjectively/arbitrarily defined auspices of “community welfare.

Aside from the legalities which weigh completely in Plaintiff’s favor here, the public interest of

7 And the “no-contact” nature of the Peace Order (entered before the June 9 special meeting) addressed any subjectively voiced “fear” that Ms. Wheatley has or had.

dangerous dictatorial paradigm for the Subdivision’s future.

There is no legal or factual basis for the purported “ban,” it violated Plaintiff’s

contractual/easement rights, and it was an ultra vires act by the Board majority, imposed

arbitrarily and in bad faith; but at minimum, at this juncture and based on the record before the

Court, the criteria for preliminary injunctive relief – all of them – weigh heavily in favor of

Plaintiff.

WHEREFORE, Plaintiffrespectfully requeststhattheCourt:

A. Issue apreliminary injunction against enforcement ofthe purported “ban, ”and

restoring Plaintiff’s right to useall OPA amenities, including those listed and identified in theNotice

Letter, during the pendencyof this case.

B. Award to Plaintiff his reasonable attorney’s fees incurred in connection with

seeking a TRO and preliminary injunction; and

C. Award to Plaintiffsuch other and further relief as the Court deems just and fair.

Date: ______ 9/2/22 __

AYRES, JENKINS, GORDY & ALMAND, P.A.

By: _______/s/ Bruce F. Bright_____________ Bruce F. Bright (Client Protection Fund # 0006120002) 6200 Coastal Highway, Suite 200 Ocean City, Maryland 21842 410-723-1400 bbright@ajgalaw.com Attorneys for Plaintiff