IN THE COURT OF SPECIAL APPEALS OF MARYLAND

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Number 2020 September Term, 2011

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DAVID S. SCHUMAN,

Appellant

v.

GREENBELT HOMES, INC., et al.

Appellees

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On Appeal from the Circuit Court for Prince George’s County

Albert W. Northrop, Associate Judge

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APPELLANT DAVID S. SCHUMAN’S BRIEF

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J.P. Szymkowicz Rita Turner SZYMKOWICZ & SZYMKOWICZ, LLP 15600 Bald Eagle School Road 2300 N Street, N.W., Suite 5310 Brandywine, Maryland 20613 Washington, DC 20037-1122 (410) 706-1129 (voice) (202) 862-8500 (voice) rturner@law.umaryland.edu jp@szymkowicz.com

Counsel for Appellant David S. Schuman

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TABLE OF CONTENTS TABLE OF CONTENTS OF BRIEF………….....……………………………...i TABLE OF STATUTES, RULES AND AUTHORITIES CITED IN APPELLANT’S BRIEF.................................................................................iv TABLE OF CASES CITED IN APPELLANT’S BRIEF.................................iv STATEMENT OF THE CASE……………………….....……………..……..…1 STATEMENT OF QUESTIONS PRESENTED………………..........…..……3 STATEMENT OF MATERIAL FACTS……………………………..……….....4

Background of GHI’s Housing Cooperative……………..……..4

GHI’s Nuisance Clause in the Mutual Ownership Contract………….…………… ……………....………………....4

The Property at Issue - 11 Ridge Road………………….......…5 The Popovics’ Smoking Practices……………..………………..6 Migration of Secondhand Smoke from the Popovics’ Home to Mr. Schuman’s and Ms. Ipolito’s Homes……...……………......6 Effects of the Popovics’ Smoking on Ms. Ipolito…………………………………………………………….…7 Effects of the Popovics’ Smoking on Mr. Schuman…………………………………………………………...7 Surgeon General’s Reports on Secondhand Smoke………….8 Mr. Schuman’s Secondhand Smoke Expert, James L. Repace, M.Sc…………………………………………………….10 Mr. Schuman’s Medical Expert, Alfred Munzer, M.D………...11 Mr. Schuman’s Complaint to GHI’s Member Complaint Panel……………………………………………………………...12

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GHI’s Failure to Take Action to Stop the Migration of Secondhand Smoke from the Popovics’ Home into Mr. Schuman’s Home………………………………………………..14 The Circuit Court’s Oral Decision After Bench Trial……..…..15 Mr. Schuman’s Notice of Appeal……………………………….17

APPELLATE STANDARD OF REVIEW……………………………..….…...17 ARGUMENT………………………………………………..……………..….…18

I. BREACH OF CONTRACT………….....................……….......18

A. Under GHI’s MOC, GHI is the landlord and Mr. Schuman and the Popovics are tenants, and therefore, pursuant to the MOC, GHI has the power to enforce the “nuisance” clause contained in the MOC and to take action to prevent the Popovics’ from smoking in their home or on their patio.…………………………………………………………...….19 B. Covenant of Quiet Enjoyment……..………………....…21 C. Mr. Schuman is an intended beneficiary of the Popovics’ MOC………………………………………………………...........23

II. NUISANCE……………………………………………..………...23

A. Legal activities may constitute a nuisance………...…..25 B. There is no “right to smoke”……..………………..…….26 C. Secondhand smoke is a nuisance in other states…….26

1. Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op. 50054U, *1 (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011)……………………..26 2. Poyck v. Bryant, 13 Misc. 3d 699, 700 (Civil Ct. of the City of New York, August 24, 2006)…………………………………………………....…27

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3. Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct. of App.. 6th App. Dist., Lucas Cty. August 20, 2004)………………………………………....29 4. Merrill v. Bosser, Case Number 05-4239 COCE 53 (Broward County, Florida County Court June 29, 2005)…………………………….………………..…….…29 5. McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York, Watertown, November 15, 1999)……………………………………………………....30

D. Conclusion………………………………………………...31

III. TRESPASS…………………………………….….………….….31

IV. NEGLIGENCE…………………………………………..……….31 V. THE BUSINESS JUDGMENT RULE …….……….………..…32

A. The business judgment rule does not preclude litigation of complaints sounding in tort or contract ………………….…33

B. The business judgment rule does not preclude litigation where the corporation has engaged in conduct that represents a breach of their fiduciary obligations………………………....33

VI. INJUNCTION………………………………………………….…34

CONCLUSION…………………………………………………………......…..34 CERTIFICATION OF BRIEF FORMAT……...…………………..…..……....36 CERTIFICATE OF ADMISSION OF ATTORNEY WITH OFFICES OUTSIDE THE STATE OF MARYLAND………………………………..…...36 CERTIFICATE OF SERVICE……………………………………..…………..36 APPENDIX……………………………………………………………Appendix 1

Transcript of Circuit Court’s Oral Opinion Rendered in Open Court on November 3, 2011………………………………………...Appendix 2

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Circuit Court’s Final Order dated November 3, 2011……Appendix 17

Table of Statutes, Rules and Authorities Cited in Appellant David S. Schuman’s Brief

The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006……………………………………………………………………………8-10 U.S. Department of Health and Human Services. How Tobacco Smoke Causes Disease - The Biology and Behavioral Basis for Smoking-Attributable Disease: A Report of the Surgeon General. 2010. Atlanta, Georgia: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health……..8-10

Table of Cases Cited in Appellant David S. Schuman’s Brief

American Legion Post 149 v. Department of Health, 192 P. 3d 306 (Wash. 2008)…………………….............................................................................26 Anne Arundel County Fish & Game Conservation Association, Inc. v. Carlucci, 83 Md. App. 121 (1989)………………………………………….…25 Bey v. Moorish Science Temple, 362 Md. 339 (2001)…………….……….17 Bishop Processing v. Davis, 213 Md. 465 (1957)………………….............25 Bittner v. Huth, 162 Md. App. 745 (2005)………………………………..…..31 Black v. Fox Hills North Community Association, Inc., 90 Md. App. 75 (1992)………………………………………………………………….…..…….32 Blondell v. Littlepage, 185, Md. App. 123 (2009)…………………………...23 Bocchini v. Gorn Management, 69 Md. App. 1 (1986)..………………..21-22 Brooks v. Lewin Realty, 378 Md. 70 (2003)………………….……………...21

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Chicago Title Insurance Company v. Allfirst Bank, 394 Md. 270 (2006)……………………………………………………………………......31-32 City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995)………………...26 Exxon v. Yarema, 69 Md. App. 124 (1986)………………………………….24 Fagan v. Axelrod, 146 Misc. 2d 286 (Supreme Ct. of New York, Albany County, January 10, 1990)…………………………………………………….26 Five Oaks v. Gathmann, 190 Md. 348 (1948)………………..……….…….24 Fox v. Ewers, 195 Md. 650 (1950)……………………………………...……24 Giordano v. Connecticut Valley Hospital, 588 F. Supp. 2d 306 (D. Conn. 2008)……………………………………………………………………………..26 Gorman v. Sabo, 210 Md. 155 (1956)……………………………………24-25 Grass v. Sargent, 903 F.2d 1206 (8th Cir. 1990)…………………………....26 Green v. Greenbelt Homes, Inc., 232 Md. 496 (1963)………………....19-20 Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972 (Ohio Ct. of App.. 6th App. Dist., Lucas County. August 20, 2004)……………………………......29 Herilla v. Baltimore, 37 Md. App. 481 (1977).............................................23 Kwon v. Johnson, 2010 U.S. Dist. LEXIS 129223 (W.D. Va. 2010)………26 Leatherbury v. Gaylord Fuel Corp., 276 Md. 367 (1975)…………………..34 McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York, Watertown, November 15, 1999)………………………...............................30 Meadowbrook Swimming Club v. Albert, 173 Md. 641 (1938)………...….24 Merrill v. Bosser, Case Number 05-4239 COCE 53 (Broward County, Florida County Court June 29, 2005)………………………...………..…29-30 Mountain Manor Realty, v. Buccheri, 55 Md. App. 185 (1983)………..33-34

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Nationwide Mutual Insurance Co. v. Regency Furniture, Inc., 183 Md. App. 710 (2009)………………………………………………………………..……..21 Operation Badlaw v. Licking County General Health District, 866 F. Supp. 1059 (S.D. Ohio 1992)…………………………………………………….…...26 Poyck v. Bryant, 13 Misc. 3d 699 (Civil Ct. of the City of New York, August 24, 2006)…………………………………………………………………….27-29 Reid v. Brodsky, 397 Pa. 463 (1959)………………………………………...25 Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (2003)……..…..….33 ST Systems Corporation v. Maryland National Bank, 112 Md. App. 20 (1996)………………………………………………………………………..18-19 Susquehanna Fertilizer v. Malone, 73 Md. 268 (1890)……………….....…24 Taylor v. NationsBank, N.A., 365 Md. 166 (2001)………………………….19 Unger v. Unger, 274 N.J. Super. 532 (Burlington County Superior Court, New Jersey, March 29, 1994)………………………………………………...26 Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op. 50054U (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011)…………..26-27 Village Green Mutual Homes, Inc. v. Randolph, 362 Md. 179 (2000)..19-20 Walker v. Haywood, 65, Md. App. 1 (1985)………………………………....18 Wilson-X v. Department of Human Resources, 403 Md. 667 (2008)…17-18 WSSC v. CAE-Link, 330 Md. 115 (1993)………………………..............….24

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STATEMENT OF THE CASE

On the one hand, this is a case of first impression concerning

whether the migration of secondhand smoke from one adjoining

townhouse to another is a nuisance and what duties the landlord of both

properties has to prevent such migration. On the other hand, this case is

very simple in its application of centuries-old theories of nuisance, breach

of contract and landlord-tenant relationships.

In this case, Mr. Schuman and his next-door neighbors, Mr. and Mrs.

Popovic, live in Greenbelt Homes, Inc.’s cooperative housing complex. As

members of GHI’s cooperative, both Mr. Schuman and the Popovics are

bound by GHI’s Mutual Ownership Contract [“MOC”] that establishes a

landlord-tenant relationship between GHI and its members and requires all

members “to respect the comfort and peace of mind of neighbors,” “not to

engage in conduct that is objectionable conduct,” and not to do any “act or

thing that shall or may be a nuisance, annoyance, inconvenience, or

damage” to “the occupants of adjoining dwellings.”

The facts of this case are clear and not in controversy – secondhand

smoke from the Popovics’ home and patio migrates into Mr. Schuman’s

home and patio through the common dividing wall between the units and

through windows, causing Mr. Schuman significant physical discomfort and

negative health effects, including dry eyes, nose, and throat, upper

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respiratory infections, and loss of sleep; moreover, the Circuit Court took

judicial notice of the U.S. Surgeon General’s 2006 and 2010 Reports on

secondhand smoke that conclude that the effects of secondhand smoke

are extremely dangerous and immediate, and that there is no safe level of

exposure to secondhand smoke.

Following exhaustion of GHI’s internal administrative procedures,

Mr. Schuman filed suit against the Popovics on nuisance, trespass,

negligence and breach of contract theories, and against GHI on theories of

negligence and breach of contract, including the breach of the implied

covenant of quiet enjoyment that landlords owe to tenants, for failing to

enforce the MOC’s “nuisance” clause. Mr. Schuman moved for a

declaratory judgment on whether the Popovics’ smoking was a nuisance

under the MOC and for a permanent injunction directing the Popovics to

refrain from smoking inside their unit and on their patio. Mr. Schuman also

sought monetary damages resulting from the Popovics’ smoking and GHI’s

failure to take action to stop the Popovics from exposing Mr. Schuman to

secondhand smoke.

After a seven-day bench trial, Judge Northrop found that

“secondhand smoke is not good. It’s harmful. It presents a risk” and

admitted that smoking killed his sister, but nevertheless denied all relief to

Mr. Schuman on the grounds that “[t]his is a legislative decision” and “up to

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this point” the legislature has chosen not to ban smoking. Additionally, the

Circuit Court found that Mr. Schuman should mitigate his damages by

closing his windows, that Mr. Schuman caused his problems by renovating

his home, that Mr. Schuman could have taken his dispute to GHI’s

membership as a whole after GHI’s Member Complaint Panel found that it

was powerless to stop the Popovics from smoking and that the business

judgment rule protects GHI from liability.

STATEMENT OF QUESTIONS PRESENTED

In a case where Mr. Schuman and his neighbors, Mr. and Mrs.

Popovic, are bound by GHI’s “Mutual Ownership Contract” [“MOC”] that

creates a landlord-tenant relationship between GHI and its members and

that bans “nuisance[s], annoyance[s], inconvenience[s] and [anything that

causes] damage to GHI […] or to the occupants of adjoining dwellings,”

and where the evidence presented at trial was undisputed that the

Popovics’ secondhand smoke migrated from their property onto

Schuman’s patio and into his home causing Mr. Schuman to suffer

physical injuries, annoyance and inconvenience due to the Popovics’

smoking, did the Circuit Court err in

(1) failing to enforce Mr. Schuman’s rights found in GHI’s MOC,

(2) failing to recognize and apply the common law of nuisance in denying Mr. Schuman’s request for a permanent injunction precluding the Popovics from smoking on their

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property, and

(3) denying Mr. Schuman’s request for monetary damages based on the migration of secondhand smoke?

STATEMENT OF MATERIAL FACTS1

Background of GHI’s Housing Cooperative

Both Mr. Schuman and the Popovics are members of GHI’s

cooperative housing association and are parties to GHI’s Mutual

Ownership Contract ["MOC"]. [E. 1590-1613]. This MOC “creates a legal

relationship between GHI and Member as that of landlord and tenant" and

“establishes the rights and obligations” of both parties “in addition to those

rights and responsibilities established by Maryland law.” [E. 1590].

GHI’s Nuisance Clause in the Mutual Ownership Contract

GHI’s MOC contains a “nuisance” clause that states

Member . . . shall use the Premises and the common property and facilities in conformance with the terms of this Contract,

                                                                                                               1 During the seven week period between the last day of testimony and closing arguments in the Circuit Court, Mr. Schuman obtained transcripts of the trial testimony and prepared and filed a 156 page “proposed summary of testimony presented at trial, findings of fact and conclusions of law” that highlighted the testimony and evidence introduced at trial with citations to the transcript and record. [E. 1773-1937].

On November 28, 2011, Mr. Schuman filed a motion to extend page limit for brief in the Court of Special Appeals in order to set forth, in detail, the facts and law relevant to this case of first impression, but the Court denied this motion on December 14, 2011.

Therefore, in this brief, Mr. Schuman will summarize the relevant

facts and legal argument and direct the Court to the “156 page brief” for additional support where necessary.

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the Bylaws, and the Rules. . . . It shall be the duty of Member to respect the comfort and peace of mind of neighbors . . . not to engage in conduct that is objectionable conduct, and to ensure that all persons occupying or visiting in the Premises so act. Member agrees not to do or allow to be done . . . any act or thing that shall or may be a nuisance, annoyance, inconvenience, or damage to GHI or its members or tenants, or to the occupants of adjoining dwellings or of the neighborhood. [E. 1592].

The Property at Issue - 11 Ridge Road

The properties at issue are attached townhouses in GHI’s housing

cooperative with the Popovics living between Mr. Schuman’s and Ms. Dory

Ipolito’s homes. [E. 302]. The Popovics moved in after Mr. Schuman and

Ms. Ipolito were already living there. [E. 302]. The following pictures of

these townhouses show the close proximity of the units. [E. 1447-48]:

The wall separating the Schuman and Popovic units is a “hollow” wall

comprised of drywall over plywood and chicken wire that has a “number of

penetrations” with cutouts for electrical outlets and pipes. [E. 198, 384].

�� ������ ��� ������ ��� ��� ���� ������

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The wall between the Popovic and Ipolito units is a “brick firewall.” [E.

197].

The Popovics’ Smoking Practices

Ms. Popovic died in April 2012 of a cancerous tumor. Prior to trial,

Mr. Popovic consented to an order prohibiting his smoking inside his

home, that the Circuit Court made permanent in its final order. [E. 1978].

Mr. Popovic currently smokes on his patio “after he gets home for about an

hour, hour-and-a-half,” whereas, prior to his wife’s sickness, “it could be for

a longer period.” [E. 354-55].

Migration of Secondhand Smoke from the Popovics’ Home to Mr. Schuman’s and Ms. Ipolito’s Homes

Prior to living next-door to Mr. Schuman and Ms. Ipolito, the

Popovics lived in another GHI home where their neighbors – three units

away – testified in the Schuman trial that smoke from the Popovics’

cigarettes migrated into their home. [E. 263]. After the Popovics moved,

their neighbor, Mrs. Hammett, noticed a “tar residue” that left a “distinct

outline on the wall” surrounding where pictures had once hung in the

Popovics’ former house. [E. 279-80]. Mr. Schuman and Ms. Ipolito both

began having problems with secondhand smoke when the Popovics

moved in. [E. 303, 394]. After Mr. Schuman and Ms. Ipolito complained to

GHI about the Popovics’ smoking, GHI “caulked” and “sealed” the walls

between the various units, but this did not prevent the smoke from

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migrating from through the walls, and obviously, could never stop smoke

from migrating from the Popovics’ outdoor patio into Mr. Schuman’s and

Ms. Ipolito’s homes. [E. 303-05, 396].

Effects of the Popovics’ Smoking on Ms. Ipolito

Ms. Ipolito testified that the Popovics’ smoking caused her chest to

tighten and to have to use a rescue inhaler to assist her breathing due to

her asthma. [E. 307-10]. Ms. Ipolito further testified that, in order to

prevent smoke from entering her home, she is forced to shut her windows

whenever the Popovics smoke on their patio. [E. 310-11]. Additionally,

Ms. Ipolito has a screened-in porch that she cannot use due to the

Popovics’ smoking. [E. 312-13]. Moreover, Ms. Ipolito testified that she

likes to keep her windows open on nice days but has to keep her windows

closed due to the Popovics’ smoking. [E. 314-15]. When her

neighborhood experienced a long power outage on a hot day, Ms. Ipolito

had to sleep in another bedroom on the other side of her house in order to

alleviate the effects of the Popovics’ smoke that entered the house with the

windows open. [E. 315].

Effects of the Popovics’ Smoking on Mr. Schuman

Mr. Schuman complained that the Popovics’ smoking caused him to

lose sleep, experience frequent headaches and a persistent cough and

that he had to open his windows (when the Popovics were smoking inside)

“to ventilate the unit, causing cold air to enter” and raising his heating bill.

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[E. 1624]. Mr. Schuman testified that the Popovics’ smoking affected his

health in an “involuntary” manner and that “I found it very difficult to

breathe. My heart was racing. My eyes were tearing up, sneezing,

coughing, congested, coughing, you name it. It got so bad I had to go to

the doctor.” [E. 401]. Additionally, Mr. Schuman testified that “Not to make

a huge laundry list. I couldn’t sleep. I felt nauseous at times. I had

headaches. It was just a terrible, terrible situation.” [E. 402]. Mr.

Schuman stated that he “didn’t have these issues before the smoking

started” and that “[t]hey happened with a vengeance very close in time to

this smoke.” [E. 414]. Mr. Schuman further testified that “I experienced

them when I experienced the smoke. I didn’t experience them when there

wasn’t smoking, and I didn’t experience them when the Popovics stopped

smoking inside.” [E. 416]. With regard to the Popovics’ outdoor smoking,

Mr. Schuman testified that

I can’t fully use my property the way I feel I would like to use it. Mr. Popovic is free to use his property the way he wants to; gets to sit on his patio; keep his windows open. I can’t keep my windows open on a nice day like it was yesterday. I would like to be able to sit on my patio; use my rocking chairs; enjoy my property. I would like to use my backyard. I would like to keep my windows open; have the fresh breeze blow through my house on nice days. I don’t want to have to run the air conditioner and pay for that. [E. 467].

Surgeon General’s Reports on Secondhand Smoke

In 2006 and in 2010, the U.S. Surgeon General published two

reports totaling 1,415 pages on the health effects of exposure to

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secondhand smoke.2 After finding no “problem with their authenticity,

reliability or anything else,” the Circuit Court took judicial notice of the facts

contained in these reports. [E. 640]. Among the Surgeon General’s

findings are facts that

• There are at least 250 chemicals in secondhand smoke that are toxic or carcinogenic. [See 2006 Report at page 29]. • Secondhand smoke is associated with an increased risk for cardiovascular disease. [See 2006 Report at page 531]. • Even a brief exposure to secondhand smoke has adverse consequences for the heart, blood and blood vessels. [See 2006 Report at page 64]. • Despite estimated exposure levels equivalent to smoking only one-half of one cigarette per day, the estimated increase in risk of cardiovascular disease from exposure to secondhand smoke is 25 to 30 percent above that of unexposed persons. [See 2006 Report at page 519]. • People who have heart disease should avoid even brief exposures to secondhand smoke. [See 2006 Report at pages 576-77]. • HVAC systems cannot fully control exposures to secondhand smoke unless a complete and total smoking ban is enforced. [See 2006 Report at page 92]. • The 2010 Report “explains beyond a shadow of a doubt how tobacco smoke causes disease, validates earlier findings, and expands and strengthens the science base” and calls the data contained in this Report “irrefutable.” [See 2010 Report at Foreword].

                                                                                                               2     See Mr. Schuman’s trial exhibits 17 and 18 that, due to size, are not included in the Record Extract. See 2006 Report at http://www.surgeon general.gov/library/reports/secondhandsmoke/fullreport.pdf. See 2010 Report at http://www.surgeongeneral.gov/library/reports/tobaccosmoke/ full_report.pdf.

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• The harmful effects of smoking do not end with the smoker. Every year, thousands of nonsmokers die from heart disease and lung cancer, and hundreds of thousands of children suffer from respiratory infections because of exposure to secondhand smoke. [See 2010 Report at Foreword]. • There is no risk-free level of exposure to tobacco smoke, and there is no safe tobacco product. [See 2010 Report at Foreword].

Mr. Schuman’s Secondhand Smoke Expert, James L. Repace, M.Sc.

At trial, Mr. Schuman called James L. Repace, M.Sc., a health

physicist, to testify as an expert in secondhand smoke. Mr. Repace has

published approximately seventy-five scientific papers on secondhand

smoke and the U.S. Surgeon General cited Mr. Repace’s work nineteen

times in the 2006 Report. [E. 642, 648-49]. Mr. Repace first testified that it

is not technologically feasible to “seal” walls to prevent secondhand smoke

from migrating from one attached townhouse to another because there are

“just too many pathways, plumbing [and] electrical connections” and that

the “gaps between the wall board and the floor” are “not perfect.” [E. 688-

91]. Mr. Repace also testified that the results of a nicotine monitor study of

the inside of Mr. Schuman’s home revealed that there was secondhand

smoke present and that this objective data was confirmed by the fact that

Mr. Repace also smelled the smoke. [E. 707-08, 1521-38]. Based on the

data from this study, Mr. Repace found that Mr. Schuman’s “average daily

SHS-nicotine exposure produces an estimated excess chronic mortality

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risk that exceeds by more than 2000 times the de minimis risk level used

by the U.S. Environmental Protection Agency for hazardous air pollutants.

[E. 746-47, 1535]. Mr. Repace also performed a secondhand smoke

infiltration test with a $12,000 monitor inside Mr. Schuman’s home while

Mr. Popovic was smoking on his outdoor patio and found that this smoke

entered Mr. Schuman’s open windows and resulted in a five to six times

higher than average median level of pollution that was “both irritating and

carcinogenic.” [E. 697-98, 701-03, 755, 845-46, 1563-76]. Additionally, Mr.

Repace found that even if Mr. Schuman closed his windows, secondhand

smoke from the Popovics’ patio would still enter Mr. Schuman’s home,

albeit at lower levels than if the windows were open. [E. 774].

Mr. Schuman’s Medical Expert, Alfred Munzer, M.D.

At trial, Mr. Schuman called Alfred Munzer, M.D., the former

President of the American Lung Association and the Director of Pulmonary

Medicine at Washington Adventist Hospital, as his medical expert. [E.

853-54]. Dr. Munzer, who was present in the courtroom when Mr.

Schuman testified as to his medical injuries from the Popovics’ smoking,

found that

Secondhand smoke, like any other smoke, like direct smoking, is rapidly taken up; inhaled. It is then taken up in the lungs and rapidly, as some of the substances are transferred at the alveolar level to the bloodstream, and then to distant parts of the body, and that’s how we explain some of the more chronic effects of cigarette smoking, for example, the abduction of lung cancer in organs that are as distant as the bladder . . .

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[and] generally, [the body] defends itself, if you will, against the offense, against the - - that’s the manifestation that we call sneezing, the red eyes, the burning of the eyes. These are all manifestations that the body is being attacked by something it doesn’t like . . . [and that] I think the symptoms that [Mr. Schuman] described are a harmful effect of exposure to secondhand smoke. Certainly, his complaint of burning of the eyes, his complaint of tightness in his chest, wheezing, coughing, headache, all of those are adverse effects and may be transient, might not be terribly important in the long run, but they are definite adverse effects indicating that he is being exposed to secondhand smoke, and secondhand smoke, furthermore, is getting into his body and may place him at risk of developing some further problems later on. [E. 862-64, 872-74].

Dr. Munzer also testified that he believed that Ms. Ipolito “had been

exposed to secondhand smoke, and it had caused exacerbations of her

asthma.” [E. 868].

Mr. Schuman’s Complaint to GHI’s Member Complaint Panel

In January 2009, when the Popovics’ smoking became “unbearable,”

and after Mr. Schuman’s letters to the Popovics had no effect, Mr.

Schuman filed a complaint with GHI’s Member Complaint Panel under

procedures set forth in GHI’s “Member Handbook.” [E. 1582-89, 1621-22].

On September 29, 2009, GHI’s Member Complaint Panel received

testimony from Mr. Schuman and Mrs. Popovic in response to Mr.

Schuman’s complaint. [E. 1642-48]. During this Member Complaint Panel

hearing, the Chairwoman, Sylvia Lewis stated “Secondhand smoke is

damaging and it is nothing we have to discuss” and proceeded to receive

testimony from Mr. Schuman and his secondhand smoke expert, Mr.

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Repace. [E. 1642]. During this hearing, Panel Member Ed James stated,

“I am impressed by Mr. Repace’s report.” The Panel took it as a given that

secondhand smoke from the Popovics’ smoking migrated into Mr.

Schuman’s home. [E. 596]. During her testimony, Mrs. Popovic

recognized the dangers of secondhand smoke, a fact that the Board took

as a given. [E. 596, 1092, 1646]. GHI’s General Manager, Gretchen

Overduff, admitted at trial that HVAC systems cannot fully control exposure

to secondhand smoke in a multi-unit building. [E. 599-600]. GHI’s General

Manager, further testified at trial that secondhand smoke is “irritating and

malodorous,” that “sounds, smells, scents will pass between units [within

GHI’s complex],” that secondhand smoke places non-smokers at

significant risk of health problems and that secondhand smoke in Mr.

Schuman’s home is “considered a hazard.” [E. 608, 610, 615, 622]. GHI’s

President, Tokey Boswell, was asked at trial, “So you agree that the health

effects of secondhand smoke are documented?,” to which he responded,

“Yes, absolutely.” [E. 1205]. GHI’s President also conceded that neither

the Popovics nor GHI presented any evidence to the Member Complaint

Panel in opposition to Mr. Schuman’s claims. [E. 1173-74]. GHI’s

President further testified that it was “not terribly a surprise” for the Board

to learn that “secondhand smoke is entering Mr. Schuman’s unit” and that

“any member who has lived next to a smoker would tell you that the odor

of secondhand smoke comes in, and that’s just true.” [E. 1172-73].

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Additionally, GHI’s President admitted that he has does not like

secondhand smoke and has “closed [his] windows and doors when one of

[his] neighbors smokes,” and does so “because that improves [his]

personal quality of life.” [E. 1221]. Mr. Popovic admitted that when he was

smoking inside his home, secondhand smoke migrated in Mr. Schuman’s

home and that he continues to smoke on his outdoor patio. [E. 1265-66].

Mr. Popovic further admitted that secondhand smoke is dangerous and

annoying to Mr. Schuman and that secondhand smoke causes cancer. [E.

1269, 1271-72, 1294-95]. Finally, Mr. Popovic was asked at trial “If Mr.

Schuman were having a dinner party outside on his patio, would you still

go out on your patio and smoke?,” to which he responded, “One or two

cigarettes probably, maybe.” [E. 1270].

GHI’s Failure to Take Action to Stop the Migration of Secondhand Smoke from the Popovics’ Home into Mr. Schuman’s Home

Despite receiving uncontroverted evidence as to the dangers of

secondhand smoke and as to the fact that secondhand smoke from the

Popovics’ home migrated into Mr. Schuman’s home, GHI’s Member

Complaints Panel published a written decision with regard to Mr.

Schuman’s complaint that stated

it appears that the only remedy is for your neighbors to cease smoking. Because GHI is not a smokefree community, the cooperative is not able to request that your neighbors not smoke. This is a difficult situation and it appears there is no solution unless your neighbors are willing to stop smoking, or one party or the other wishes to relocate.

15

During a meeting with your neighbor, your health concerns were discussed and suggestions were made for dealing with this problem. We hope that they will consider the problem more fully and be willing to be a part of the solution. At this time, there appears to be nothing further that GHI can do to resolve the problem. [emphasis added] [E. 1635].

The Member Complaint Panel Chairwoman explained this decision at trial

by stating that GHI did not believe that it had the power to ask the

Popovics to stop smoking. [E. 1116]. GHI’s President stated at trial that

“there are times when members cannot resolve the issue between

themselves” and that “[i]f they cannot resolve it, it’s sometimes best for one

of the members to move out.” [E. 1208].

The Circuit Court’s Oral Decision After Bench Trial

During the six days of testimony in a bench trial, Judge Northrop, as

did GHI during the Member Complaints Panel hearing, received

uncontroverted evidence as to the dangers of secondhand smoke to Mr.

Schuman and as to the fact that secondhand smoke from the Popovics’

home migrated into Mr. Schuman’s home. However, despite this

uncontroverted evidence, the Circuit Court refused to grant Mr. Schuman’s

motion for a permanent injunction concerning the Popovics’ patio smoking

(although it did grant by consent a permanent injunction regarding the

Popovics’ indoor smoking), refused to grant Mr. Schuman’s motion for a

declaratory judgment that the Popovics’ smoking violated GHI’s “nuisance”

clause and refused to award any monetary damages to Mr. Schuman

16

against the Popovics and GHI under any legal theory. [E. 1422-1436,

1978]. In rendering this decision, Judge Northrop noted that his father was

a “lifelong smoker,” that “there’s no question that smoking killed [his sister],

that he “was the managing partner who banned smoking in [his] law office”

and that the courthouse where the trial took place is smokefree. [E. 1423-

24]. Judge Northrop, in rendering his decision in open court stated “in my

mind, secondhand smoke is not good. It’s harmful. It presents a risk.” E.

1428]. Additionally, Judge Northrop found that GHI’s suggestion that Mr.

Schuman move if he did not like the Popovics’ smoking was “ludicrous”

and “outrageous.” [E. 1424].

Notwithstanding the undisputed evidence and Judge Northrop’s own

observations, the Circuit Court found that “not all nuisances are

necessarily actionable” and that “[t]his is a legislative decision. The

legislatures looked at secondhand smoke. They’ve looked at that issue,

and they’ve made a determination, and they have chosen, at least up to

this point, not to ban secondhand smoke generally or all smoking or to limit

it to certain smoking areas” and that “if this decision is to be made, it is a

decision, in my view, that’s going to have to be made by the legislature.”

[E. 1431-32]. With regard to GHI, the Circuit Court found that the business

judgment rule immunizes it from liability. [E. 1425]. The Circuit Court also

found that, despite GHI’s making two statements after the Member

Complaints Panel decision that “there appears to be nothing further that

17

GHI can do to resolve the problem” and “[t]he Board regrets there is

nothing more it can do for you regarding this matter,” that Mr. Schuman

could have taken his complaint to GHI’s general membership for final

resolution. [E. 1635, 1640, 1424-25]. The Circuit Court also found that Mr.

Schuman should mitigate the effects of the Popovics’ patio smoking by

closing his windows and suggested that a “better solution would be to put a

20-inch exhaust fan in the kitchen window, open a window on the other

side of the unit, bring in fresh air into the unit, and blow away any chance

of secondhand smoke coming in.” [E. 1428-29].

Mr. Schuman’s Notice of Appeal

On November 28, 2011, Mr. Schuman filed a timely notice of appeal

of the Circuit Court’s oral decision and final order entered on November 3,

2011. [E. 1980-81].

APPELLATE STANDARD OF REVIEW

When reviewing a judgment arising from a bench trial, the appellate

court must "review the case on both the law and the evidence," but “must

not set aside the judgment of the trial court on the evidence unless clearly

erroneous.” Bey v. Moorish Science Temple, 362 Md. 339, 353 (2001).

Additionally, the appellate court “must consider the evidence in the light

most favorable to the prevailing party, deciding not whether the trial judge's

conclusions were correct, but whether they were supported by a

preponderance of the evidence.” Id. “[T]rial judges do not have discretion

18

to apply inappropriate legal standards, even when making decisions that

are regarded as discretionary in nature.” Wilson-X v. Department of

Human Resources, 403 Md. 667, 675 (2008).

ARGUMENT

I. BREACH OF CONTRACT

Mr. Schuman claims that the Popovics, on one hand, and GHI, on

the other hand, breached the “nuisance clause” of GHI’s MOC. With

regard to his claim against the Popovics, Mr. Schuman claims that he is a

third-party beneficiary of the MOC between the Popovics and GHI, and

thus, has standing to sue the Popovics for the Popovics’ violations of the

“nuisance clause” of the Popovics’ MOC. With regard to his claims against

GHI, Mr. Schuman claims that GHI breached the implied covenant of quiet

enjoyment (and thus, breached Mr. Schuman’s MOC) by failing to take

action to prevent the Popovics from smoking inside their home and outside

their home at a distance where secondhand smoke could migrate into Mr.

Schuman’s home through open windows and through cracks around

closed windows and doors.

“Parties have the right to make contracts and courts [have] the duty

to enforce them in their integrity and entirety.” Walker v. Haywood, 65, Md.

App. 1, 14 (1985). A court has the duty “to interpret the language of the

contract and determine what a reasonable person in the parties' position

would have meant by the language used in the contract. Additionally,

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words within a contract are afforded their ordinary meaning unless

otherwise specified.” ST Systems Corporation v. Maryland National Bank,

112 Md. App. 20, 34 (1996). In Taylor v. NationsBank, N.A., 365 Md. 166,

175 (2001), the court found that “[t]o prevail in an action for breach of

contract, a plaintiff must prove that the defendant owed the plaintiff a

contractual obligation and that the defendant breached that obligation. It is

not necessary that the plaintiff prove damages resulting from the breach,

for it is well settled that where a breach of contract occurs, one may

recover nominal damages even though he has failed to prove actual

damages.” The Circuit Court failed to enforce GHI’s MOC, and instead,

found that this is a “matter for the legislature.” The evidence at trial was

undisputed that the Popovics’ smoking was annoying and inconveniencing

to Mr. Schuman, at the very least, and dangerous to Mr. Schuman’s

health, at worst; therefore, the Circuit Court’s refusal to enforce this

contract is in error.

A. Under GHI’s MOC, GHI is the landlord and Mr. Schuman and the Popovics are tenants, and therefore, pursuant to the MOC, GHI has the power to enforce the “nuisance” clause contained in the MOC and to take action to prevent the Popovics’ from smoking in their home or on their patio. This “landlord-tenant” relationship was confirmed in Green v.

Greenbelt Homes, Inc., 232 Md. 496, 500 (1963), in which a member of

GHI’s cooperative housing cooperative violated the terms of GHI’s MOC.

See also Village Green Mutual Homes, Inc. v. Randolph, 362 Md. 179, 183

20

(2000). As a result, GHI ordered the member to vacate the premises.

Green, 232 Md. at 500. The trial court found that GHI’s MOC contained

“restrictions on the use of the cooperative dwelling unit” which gave the

corporation the “right to terminate the contract” in the event of the

member’s breach. Id. at 504. Moreover, the court observed that “[a]n

important factor in the maintenance of a cooperative housing project is the

control of the activities of the cooperative members living within the

project” and that

The economic and social interdependence of the tenant-owners demands cooperation on all levels of cooperative life if a tolerable living situation is to be maintained. Each tenant-owner is required to give up some of the freedoms he would otherwise enjoy if he were living in a private dwelling and likewise is privileged to demand the same sacrifices of his cotenant-owners with respect to his rights. By analogy, the cooperative agreement is really a community within a community, governed, like our municipalities, by rules and regulations for the benefit of the whole. Whereas the use of lands within a city is controlled by zoning ordinances, the use of apartments within the cooperative project is controlled by restrictive covenants. The use of the common facilities in the project is controlled on the same theory that the use of city streets and parks is regulated. In both situations compliance with the regulations is the price to be paid to live in and enjoy the benefits of the particular organization. Id. at 503-04.

In Village Green, 362 Md. at 191, the court recognized that “the activities of

cooperative members may be contractually regulated and that these

regulations should be enforced.” Thus, GHI owed the same duties to Mr.

Schuman that all landlords owe to their tenants and had the power to

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enforce the “nuisance” clause contained in the MOC and to take action to

prevent the migration of the Popovics’ secondhand smoke.

B. Covenant of Quiet Enjoyment. “In Maryland, generally, in the absence of an actual or constructive

eviction, a tenant will have a claim for damages caused by conduct by the

landlord that strikes at the essence of its obligations under the lease. The

scope or magnitude of the interference necessary to constitute a breach of

the covenant of quiet enjoyment must be such as goes to the essence of

what the landlord is to provide. If that is proven, a breach of the covenant

of quiet enjoyment will be established and the tenant may recover

damages incurred by the breach. Nationwide Mutual Insurance Co. v.

Regency Furniture, Inc., 183 Md. App. 710, 734 (2009); Brooks v. Lewin

Realty III, Inc., 378 Md. 70, 84 (2003).

In Bocchini v. Gorn Management Company, 69 Md. App. 1, 4

(1986), a tenant created “unbearable” noise during the middle of the night

and had a “very loud alarm clock” that went off at 5:00 a.m. After the

Bocchini plaintiff’s efforts to directly resolve the problem with her neighbors

failed, the plaintiff complained to the joint landlord. Id. The landlord

informed the plaintiff that it “was not going to take any action regarding the

problem.” Id. at 5. Thereafter, the Bocchini plaintiff filed suit against the

landlord alleging that the neighbor’s lease “included a clause against

excessive noise” and that the landlord’s refusal to enforce that provision

22

“ratified and encouraged” the neighbor’s behavior. Id. In Bocchini, the

court found that “[w]here, through lease provisions or otherwise, [the

landlord] has [the ability to correct or terminate the actions of the tenant],

the thought is that [the landlord] ought not to be able to escape his

obligation under a covenant of quiet enjoyment by steadfastly refusing to

exercise his authority.” Id. at 12. “The insertion in a lease of a restriction

against excessive noise or other offensive conduct is precisely for the

purpose of enabling the landlord to control that conduct. Its principal

function – at least in a multi-unit apartment lease – is to protect the right of

other tenants to the quiet enjoyment of their homes by allowing the

landlord to evict a tenant who transgresses upon that right.” Id. The

Bocchini case concluded by stating:

The traditional view rests essentially upon the notion that a landlord should not be responsible for the actions of persons over whom he has no control. In the older cases, tenants were treated much the same as trespassers or other strangers in that regard; unless the landlord in some way authorized or sanctioned the offensive conduct, he would not be held liable for it. Our concern is not with the underlying principle but rather with its application. The more recent cases dwell not so much on whether the landlord has approved the conduct of the tenant as whether he is in a position to correct or terminate it. Where, through lease provisions or otherwise, he has that ability, the thought is that he ought not to be able to escape his obligation under a covenant of quiet enjoyment by steadfastly refusing to exercise his authority. We adopt that view. It is fair and it is reasonable. Id. at 11-12 (1986). [emphasis in original].

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In the instant case, GHI had the “ability” to stop the migration of

secondhand smoke from Popovics’ home to Mr. Schuman’s home

pursuant to the MOCs it entered into with both Mr. Schuman and the

Popovics. By “steadfastly refusing to exercise [its] authority” to abate this

nuisance, GHI breached the implied covenant of quiet enjoyment.

C. Mr. Schuman is an intended beneficiary of the Popovics’ MOC.

The “nuisance clause” in the MOC exists for the protection of each

member’s fellow neighbors in order for the neighbors to “fulfill their housing

needs in comfortable, pleasant surroundings.” [E. 1582]. Thus, when a

GHI member enters into GHI’s MOC, he or she does so with the intent of

providing his or her neighbors with the benefits of contractual provisions

concerning behavior in the community, including nuisances. Therefore,

since Mr. Schuman was an intended beneficiary of the Popovics’ MOC, he

has standing to sue the Popovics for violating the “nuisance clause”. See

Blondell v. Littlepage, 185, Md. App. 123, 138 (2009).

II. NUISANCE

In Herilla v. Baltimore, 37 Md. App. 481, 491 (1977), the court

defined “nuisance” as “anything that works or causes injury, damage, hurt,

inconvenience, annoyance, or discomfort to one in the legitimate

enjoyment of his reasonable rights of property, or which renders ordinary

use and occupation by a person of his property uncomfortable to him.”

24

See also Meadowbrook Swimming Club v. Albert, 173 Md. 641, 645

(1938); Five Oaks Corporation v. Gathmann, 190 Md. 348, 354 (1948);

Fox v. Ewers, 195 Md. 650, 658 (1950); Susquehanna Fertilizer Company

v. Malone, 73 Md. 268, 280 (1890). “All tangible intrusions, such as noise,

odor, or light fall within the realm of nuisance.” Exxon Corporation v.

Yarema, 69 Md. App. 124, 147 (1986). “A disturbance of the comfort or

convenience of the occupant, as by loud noises is a nuisance. So long as

the interference is substantial and unreasonable, and such as would be

offensive or inconvenient to the normal person, virtually any disturbance of

enjoyment of property may amount to a nuisance.” Id. at 148. In WSSC v.

CAE-Link Corporation, 330 Md. 115, 147 (1993), the court found that

“odors emanating from [the defendant’s] plant” was a nuisance when the

odors “produced actual physical discomfort to persons of ordinary

sensibilities, tastes, and habits.” In Gorman v. Sabo, 210 Md. 155 (1956),

two next-door neighbors were involved in a suit in which one neighbor

intentionally played a loud radio to annoy and harass the other neighbor.

In Gorman, the court observed that “[i]f noise causes physical discomfort

and annoyance to those of ordinary sensibilities, tastes and habits and

seriously interferes with the ordinary comfort and enjoyment of their

homes, and thus diminishes the value of the use of their property rights, it

constitutes a private nuisance, entitling those offended against to

damages.” Id. at 159. “So long as the interference is substantial and

25

unreasonable, and such as would be offensive or inconvenient to the

normal person, virtually any disturbance of the enjoyment of the property

may amount to a nuisance.” Id. In nuisance cases, corroboration from

similarly situated neighbors is instructive to show that these neighbors both

experienced the same discomfort. See Bishop Processing v. Davis, 213

Md. 465, 471 (1957).

A. Legal activities may constitute a nuisance.

Legal activities may constitute a nuisance. In Anne Arundel County

Fish & Game Conservation Association, Inc. v. Carlucci, 83 Md. App. 121,

123 (1989), neighbors of a gun club sought an injunction against a gun

club on a nuisance theory. The gun club argued that since it was not

subject to noise restrictions imposed under law, its activities could not be

enjoined as a private nuisance. Id. at 125. The Carlucci court held that

this fact would not bar the neighbors’ nuisance claim, stating that:

it makes no difference that the business was lawful and one useful to the public and conducted in the most approved method. The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party. Id. at 127, 131. See also Reid v. Brodsky, 397 Pa. 463, 465 n.1 (1959).

26

B. There is no “right to smoke.”

Throughout the testimony in this case, GHI and Mr. Popovic have

implied that the Popovics have the “right to smoke;” however, a review of

the common law reveals that there is no such “right to smoke.” This

holding is supported by several cases in other jurisdictions: In Fagan v.

Axelrod, 146 Misc. 2d 286, 297, (Supreme Ct. of New York, Albany

County, January 10, 1990), the court found that “[t]here is no more a

fundamental right to smoke cigarettes than there is to shoot up or snort

heroin or cocaine or run a red light.” See also Giordano v. Connecticut

Valley Hospital, 588 F. Supp. 2d 306, 321 (D. Conn. 2008); Operation

Badlaw v. Licking County General Health District, 866 F. Supp. 1059, 1064

(S.D. Ohio 1992); American Legion Post 149 v. Department of Health, 192

P. 3d 306, 322 (Wash. 2008); City of North Miami v. Kurtz, 653 So. 2d

1025, 1028 (Fla. 1995); Grass v. Sargent, 903 F.2d 1206, 1206 (8th Cir.

1990); Kwon v. Johnson, 2010 U.S. Dist. LEXIS 129223, *4 (W.D. Va.

2010); Unger v. Unger, 274 N.J. Super. 532, 540 (Burlington County

Superior Court, New Jersey, March 29, 1994).

C. Secondhand smoke is a nuisance in other states.

1. Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op. 50054U, *1 (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011)

In Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op.

50054U, *1 (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011),

27

the court stated that “[i]n modern high-rise apartment settings, a tenant’s

home is not [emphasis in original] the tenant’s castle. Landlords of such

dwellings have a corresponding duty to prevent one tenant’s habits from

materially interfering with another tenant’s right to quiet enjoyment. When

a tenant’s smoking results in an intrusion of second-hand smoke into

another tenant’s apartment, and that tenant complains repeatedly, the

landlord runs a financial risk if it fails to take appropriate action.” In

Cannon, the non-smoking tenant complained to the landlord about her

neighbor in the apartment below who smoked. Id. at *3. The court

observed that the landlord “initially tried, in good faith, to rectify the

nuisance” by “caulking and sealing around vents that may have been

conductors of cigarette smoke from the apartment below,” but that “it was

apparent to both plaintiff and defendant that these measures were

ineffective.” Id. The court found that “when these initial actions proved

ineffective, the landlord was obligated to take further steps to alleviate the

condition.” Id. at *4. The court concluded that the “landlord had the power

and duty to protect its tenants, when necessary, from second-hand smoke

constituting a ‘nuisance’ or a ‘health hazard.’” Id.

2. Poyck v. Bryant, 13 Misc. 3d 699, 700 (Civil Ct. of the City of New York, August 24, 2006)

In Poyck v. Bryant, 13 Misc. 3d 699, 700 (Civil Ct. of the City of New

York, August 24, 2006), the court stated that

28

[w]ith multiple neighbors living beside each other comes basic duties and responsibilities. There is a duty to protect each other’s right to privacy and a responsibility not to invade a neighbor’s privacy. The unwanted invasion of privacy comes in many guises such as noise, smells, odors, fumes, dust, water and even secondhand smoke. The key to avoiding such unneighborly behavior is for the neighbor to follow the often forgotten ‘Golden Rule’ – You shall love your fellow or neighbor as yourself. The Golden Rule is a general principle of ethics which essentially admonishes neighbors as follows: What is hateful to you, do not do to your neighbor.

In Poyck, the plaintiff was a landlord who owned a condominium in a

building in New York City and commenced the action to collect rent from

the defendant whose defense was that secondhand smoke from a

neighboring apartment (not owned or controlled by the plaintiff) migrated

into his unit. Id. at 703. The non-smoking defendant complained to both

the landlord-plaintiff and the building’s management, but neither took

action to stop the migration of smoke. Id. The Poyck court observed that

there is an implied warranty of habitability in every landlord-tenant

relationship

where the landlord impliedly warrants as follows: First, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety.” Id. at 700-01.

Among the actions the plaintiff-landlord could have taken, the court

observed, was that the landlord “could have asked the board of managers

of the condominium to stop the neighbors from smoking” and “commenced

29

an action for damages or injunctive relief for noncompliance with the

bylaws and decisions of the board of managers.” Id. at 705-06.

3. Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct. of App.. 6th App. Dist., Lucas County. August 20, 2004)

In Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct.

of App.. 6th App. Dist., Lucas County. August 20, 2004), the plaintiff sued

his landlord after the landlord failed to take action with regard to the

plaintiff’s complaints that secondhand smoke migrated into his home from

the apartment below. At trial, the landlord testified that it “made numerous

efforts to identify potential leaks, removed switch plate covers, and outlets,

sealed them, pulled back carpet, sealed the area between the tack strip

and the bottom of the wall and sealed flue pipes” and “did everything it

could to rectify the problem.” Id. at *29. The court found that “the trial

court’s findings were supported by credible evidence that smoke was

infiltrating [the plaintiff’s] apartment and that [the landlord] had not made

the repairs necessary to keep the apartment in a fit and habitable

condition.” Id. at *31.

4. Merrill v. Bosser, Case Number 05-4239 COCE 53 (Broward County (Florida) County Court June 29, 2005)

In Merrill v. Bosser, Case Number 05-4239 COCE 53, Broward

County (Florida) County Court June 29, 2005 (accessed from

http://ash.org/merrillcase.pdf on April 30, 2012), the plaintiff moved into a

30

condominium unit where a neighbor smoked. The condominium’s

declaration contained a “nuisance clause.” Id. at *2-3. The Bosser court

entered judgment on the plaintiff’s behalf with regard to her nuisance claim

even though it found that “there is no case on point in Florida as to whether

secondhand smoke is considered a private nuisance” since other Florida

courts “have allowed a nuisance action to proceed based on odors created

by another party” and since the “Court of Appeals of Nebraska held that to

have the use and enjoyment of one’s home interfered with by smoke, odor,

and similar attacks upon one’s senses is a serious harm.” Id. at *5.

5. McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York, Watertown, November 15, 1999)

In McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York,

Watertown, November 15, 1999), the court ordered the tenant (who

smoked in the house) to pay the landlord for the cost of cleaning the home

after the tenant moved out. The court found that the tenant’s smoking

caused tobacco smoke residue to collect on various surfaces of the house

creating an offensive odor and a potential health risk that may arise to

others who may use the premises. Id. at 274. The court also found that

smoking creates a condition which, if it were not corrected, may be

detrimental to life or health, possibly subjecting the landlord to a violation

of the warranty of habitability.” Id. at 274-275.

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D. Conclusion.

Whether the Popovics’ secondhand smoke results in a breach of

contract for violating GHI’s MOC or is a nuisance under the common law,

the undisputed evidence presented leads to only one conclusion –

judgment in Mr. Schuman’s favor against the Popovics and GHI.

III. TRESPASS

“A trespass is defined as an intentional or negligent intrusion upon or

to the possessory interest in property of another.” Bittner v. Huth, 162 Md.

App. 745, 752 (2005). “Every unauthorized entry upon the land of another

is a trespass, and whether the owner suffers substantial injury or not, the

owner at least sustains a legal injury, which entitles the owner to a verdict

for some damages; though they may, under some circumstances, be so

small as to be merely nominal.” Id. In the instant case, all parties agree

that secondhand smoke from the Popovics’ home and patio intruded upon

Mr. Schuman’s home and patio. At all relevant times, the Popovics knew

that their smoke was trespassing onto Mr. Schuman’s property. Thus, Mr.

Schuman has proven a cause of action against the Popovics for trespass.

IV. NEGLIGENCE

“The elements of negligence are well-established and require a

plaintiff to assert in the complaint the following: (1) that the defendant was

under a duty to protect the plaintiff from injury, (2) that the defendant

breached that duty, (3) that the plaintiff suffered actual injury or loss, and

32

(4) that the loss or injury proximately resulted from the defendant's breach

of the duty." Chicago Title Insurance Company v. Allfirst Bank, 394 Md.

270, 291 (2006). In the instant case, the evidence showed that the

Popovics owed Mr. Schuman a duty to protect him from the dangers and

irritation of secondhand smoke and breached this duty by allowing their

smoke to migrate onto Mr. Schuman’s property. The evidence also shows

that GHI owed Mr. Schuman a duty to protect him from the dangers of

secondhand smoke and to enforce its rules against nuisances. GHI

breached this duty by failing to take action to stop the Popovics from

smoking in the vicinity of Mr. Schuman’s home. As a direct and proximate

result of the Popovics’ and GHI’s breaches of their various duties, Mr.

Schuman suffered annoyance, inconvenience and negative health effects

from the inhalation of secondhand smoke.

V. THE BUSINESS JUDGMENT RULE.

The business judgment rule does not prevent the trial court from

reviewing GHI’s refusal to take action with regard to the Popovics’ smoking

since Mr. Schuman has alleged causes of action against GHI sounding in

tort and breach of contract. In Black v. Fox Hills North Community

Association, Inc., 90 Md. App. 75, 82 (1992), the court held that pursuant

to the business judgment rule, courts will not interfere in the internal affairs

of a corporation with only limited exceptions.

33

A. The business judgment rule does not preclude litigation of complaints sounding in tort or contract. The business judgment rule does not preclude litigation of

complaints against a corporation sounding in tort or contract. Sadler v.

Dimensions Healthcare Corp., 378 Md. 509, 532 (2003). In Sadler, the

court found that cases involving the business judgment rule seeking

injunctions on due process grounds are in contrast to cases alleging

common law and statutory causes of action in contract and tort. Id. at 526-

27. In Sadler, the court found that:

[t]he business judgment rule, which limits the court’s role in reversing the actions of a corporation, has never precluded full litigation of complaints sounding in tort or contract against the corporation. A corporation, as a private entity, may be held liable for tortious conduct and breaches of contracts, perpetrated by its officers, directors, and agents, against third parties. Id. at 532. In the instant case, Mr. Schuman filed suit against GHI (as his

landlord) on the basis of breach of contract, the breach of the implied

covenant of quiet enjoyment and negligence due to GHI’s failure to take

action to enforce the nuisance clause in GHI’s Mutual Ownership Contract;

thus, the business judgment rule does not apply in this case.

B. The business judgment rule does not preclude litigation where the corporation has engaged in conduct that represents a breach of their fiduciary obligations. In Mountain Manor Realty, Inc. v. Buccheri, 55 Md. App. 185, 195

(1983), the court found an exception to the business judgment rule where

34

a corporation’s board of directors has engaged in conduct that “represents

a breach of their fiduciary obligations.” In the instant case, GHI, as Mr.

Schuman’s landlord, owed fiduciary duties based upon both tort and

contract theories, to Mr. Schuman to enforce its Mutual Ownership

Contract’s “nuisance” clause by taking steps to prevent secondhand

smoke from migrating from the Popovics’ home into Mr. Schuman’s home.

Therefore, the business judgment rule does not apply.

VI. INJUNCTION

“A landowner may obtain an injunction against a nuisance on

adjoining land where it is shown that the injury is of such a character as to

materially diminish the value of his property and seriously interfere with the

ordinary comfort and enjoyment of it.” Leatherbury v. Gaylord Fuel Corp.,

276 Md. 367, 377 (1975). The undisputed evidence that the Popovics’

patio smoking seriously interfered with Mr. Schuman’s comfort and

enjoyment of his home and materially diminished the value of Mr.

Schuman’s property justifies a permanent injunction against this behavior.

CONCLUSION

Mr. Schuman requests that this Honorable Court reverse the denial

of his motion for a declaratory judgment that the Popovics’ smoking

violates the “nuisance” section of GHI’s Mutual Ownership Contract and

the denial of his motion for a permanent injunction regarding Mr. Popovic’s

patio smoking. Additionally, Mr. Schuman requests that this Honorable

35

Court set aside the Circuit Court’s rulings that Mr. Schuman was required

to take his complaint to GHI’s membership as a whole and that the

business judgment rule protects GHI from liability. Mr. Schuman also

requests this Honorable Court to remand this case to the Circuit Court to

enter judgment on all counts in Mr. Schuman’s favor and to award

monetary damages to Mr. Schuman against both Mr. Popovic and

Greenbelt Homes, Inc.

Respectfully submitted,

__________________________________ J.P. Szymkowicz SZYMKOWICZ & SZYMKOWICZ, LLP 2300 N Street, N.W., Suite 5310 Washington, DC 20037-1122 (202) 862-8500 jp@szymkowicz.com Rita Turner 15600 Bald Eagle School Road Brandywine, Maryland 20613 (410) 706-1129 rturner@law.umaryland.edu Counsel for Appellant David S. Schuman

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CERTIFICATION OF BRIEF FORMAT

I hereby certify, pursuant to Maryland Rule 8-504 (a) (8), that the foregoing Brief was prepared using 13 point Arial typeface.

__________________________________ J.P. Szymkowicz

CERTIFICATE OF ADMISSION OF ATTORNEY WITH OFFICES OUTSIDE THE STATE OF MARYLAND

I certify, pursuant to Maryland Rule 1-313, that I am admitted to

practice law before the Maryland Court of Appeals and am in good

standing before that Honorable Court.

__________________________________ J.P. Szymkowicz SZYMKOWICZ & SZYMKOWICZ, LLP 2300 N Street, N.W., Suite 5310 Washington, DC 20037-1122 (202) 862-8500 jp@szymkowicz.com

CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2012, I sent, via FedEx Ground #107416215000476 two printed copies of the foregoing Brief and Record Extract and one pdf copy of the foregoing Brief and Record Extract on a DVD-ROM (with agreement of counsel) to Greenbelt Homes, Inc.’s counsel, Jason E. Fisher, Esquire, of the Law Firm of Lerch, Early and Brewer, Chartered, Three Bethesda Metro Center, Suite 460, Bethesda, Maryland 20814-5367.

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I hereby certify that on April 30, 2012, I sent, via FedEx Ground -

Home Delivery #107416215000483, one printed copy of the foregoing Brief and Record Extract and one pdf copy of the foregoing Brief and Record Extract on a DVD-ROM (with agreement of Mr. Popovic) to Darko Popovic at his home, located at 11 Ridge Road, Unit R, Greenbelt, Maryland, 20770. I hereby certify that on April 30, 2012, I sent, via FedEx Ground #107416215000490, one printed copy of the foregoing Brief and one pdf copy of the foregoing Brief and Record Extract on a DVD-ROM (with agreement of counsel) to the Tobacco Control Legal Consortium’s counsel, Stephen J. Nolan, Esquire, 222 Bosley Avenue, Suite A-1, Baltimore, Maryland 21204-4328.

__________________________________ J.P. Szymkowicz

Appendix

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THE COURT'S RULING

THE COURT: Let me first thank everybody involved

for a very professional, certainly courteous presentation, as

well as one that I mentioned previously, is not something

that we see every day. At the risk of implying boredom with

red light cases, which is not the case, I must say that this

is certainly something that maintains one attention, perhaps

more so than some of the who-ran-the-red-light cases.

I'm the trier of fact. If this were a jury trial,

it would be a simple matter. I'd spend three minutes

checking off boxes, at least for the first six counts on a

verdict sheet, hand it in and walk away. That's not the case

here. I feel, certainly, constrained to take quite a few

moments to put my thoughts together and go over this case.

The case law was, in my view, substantially

reviewed at the preliminary injunction phase. I don't think

we have to go over that again; certainly, counsel is familiar

with it. There may have been a question about limitations.

Each instance would create a new cause of action, I think, so

I don't think limitations would apply.

Every day that we try jury cases, we give

instructions on the law at the end of the case. And on two

or three occasions in those instructions, I tell the jury,

depending on the instruction, to take into account the common

sense and everyday experiences. Since I'm trying this as the

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trier of fact in this case, I feel that it's only appropriate

that I give the parties here a little bit of background, my

own common sense and everyday experiences.

My dad was a smoker, a lifelong smoker. I grew up

in a house with a smoker and lived there until I went away to

college and lived with that. And I was asthmatic as a child,

growing up, which, perhaps today, would be proven to be even

more problematic than people realized many years ago. For my

part, I seem to have survived it well. I'll run the Jug Bay

10K Saturday and I think I'll do okay. I usually do every

year.

On the other hand, my sister, my oldest sister was

a lifelong smoker. She died of lung cancer back in 2001, and

there's no question that smoking killed her.

I was at my law office some years ago. I was the

managing partner who banned smoking in that law office.

And so all of these things have played in my mind,

and I think back about many of these experiences while

listening to this trial, and I figure that it's appropriate

that the parties know a little bit about my common sense and

everyday experiences.

The original courthouse actually was down off

Mt. Calvert Road. It was built with tobacco money for Prince

George's County. The county seat moved to this location.

The original courthouse at this location was built using

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tobacco profits and barter, in large part, using tobacco.

Today you cannot smoke in this building. Smoking

in this building has been banned for some time. There are

smoking areas. You'll see people, and I'm sure you have

during the course of this case, sitting out on the little

brick wall out front of the courthouse, some distance away

from the front door, and there will be smoking outside

because smoking is banned inside this building. It is a

smoke-free building.

Having gone through some of that, I mentioned

previously that I did not find -- and we're going to start

with Greenbelt Homes, Inc. I didn't find any bad faith on

their part. We previously disposed of the punitive damages

claim. They helped to negotiate this. They originally did

the sealing some years ago. They assisted with the member

complaint process.

They certainly didn't -- there was some suggestion

that maybe there was -- that Mr. Schuman move. That

suggestion would have certainly been ludicrous and certainly

would have been outrageous.

On the other hand, GHI is a smoke-free community.

There's a membership. There's a -- we'll call it a majority

rule type situation. You go to the membership panel. They

make a decision.

There was a point in this case where Mr. Schuman

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said he didn't realize he could take it further to the

membership. There is a handbook. The procedure is there.

If he chose not to take advantage of that, that's his

decision.

And I'll note that there were no other complaints.

I do feel the business judgment rule applies in this case,

and I think that they have complied with that.

But let's turn to some of these other efforts. The

first effort at sealing. Mr. Schuman says that it didn't fix

it. He says, instead, that the Popovics changed their

smoking habits and, therefore, it was not a problem from 1998

to 2008.

On the other hand, Ms. Ipolito, who is on the other

side of a fire wall instead of just a hollow wall, says that

she continued to smell smoke during that period of time.

At the original hearing, we talked about the

renovations and, yes, I thought that a suggestion that those

renovations caused the problem was just not appropriate. I

didn't have all the testimony then. There was a contractor.

We didn't have all the details. We didn't have the testimony

that kind of narrowed down and identified the space involved

and where the smell was and the nexus to where the

renovations took place.

I cannot say that Mr. Schuman is negligent or

contributorily negligent based on the renovations. But at

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the same time, I can look at that and I can't totally rule it

out. Therefore, it goes to the plaintiff's burden of proof

as to what caused the issue.

But even then it would be a moot point if we are

only talking about outside smoke. And I'll mention it, but

we're going to take care of inside smoke by consent, so it

becomes a moot point. I'm going to bring it up a little bit

later when we talk about what happened starting in 2009.

I want to turn to some of the expert testimony.

Mr. Repace did not calculate the risk from outside smoke

coming in. His study didn't measure secondhand smoke from

outside, with the windows closed. He says he cannot ignore

the -- well, there was the in-court testimony that was

mentioned previously, and it showed two nanograms, I believe

it was. This was similar to the measurements in

Mr. Schuman's house and that question came up. And why is

that? And the answer was because the courthouse gets its air

from the outside.

Well, Mr. Schuman's house gets its air from the

outside as well. So, in this, we're still learning. The

standards are evolving. This is virtually a quote. This is

the last, great unresolved area.

He said at the first hearing, for example,

secondhand smoke dissipates in 25 feet. In the next hearing

he changed his view based on new data. So one must ask what

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will tomorrow's new data be? It's, as he said, an evolving

area.

Dr. Gots testified. But both these people may have

some bias. Mr. Repace clearly has -- this is a significant

and admirable effort on his part, the secondhand smoke issue.

He is also a father of a friend of Mr. Schuman's. He's

dedicated himself to a 15-year fight against secondhand

smoke, so he may have a bias in that record.

Dr. Gots, on the other hand, was specifically hired

by the defendants. Might be considered to be what we call

sometimes a hired gun. Dr. Gots made some very good points.

Putting things in perspective, a penny is 2,500,000

micrograms. He mentioned that the risk model presented is

population based.

While Mr. Repace applied it to one individual,

neither of these people can say that Mr. Schuman did or

didn't suffer any significant injury from secondhand smoke.

They admit that.

Dr. Gots does say that, as a policy statement,

there is no safe level of secondhand smoke. Mr. Repace

agrees, in that the surgeon general report is not regulatory

but is, rather, a policy statement.

Let me note, with regard to the surgeon general's

report, I took judicial notice of those. I took judicial

notice because they were otherwise hearsay, and certainly

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would admit them as evidence to be considered. But, on

balance, I would lean toward Mr. Repace's testimony in that,

in my mind, secondhand smoke is not good. It's harmful. It

presents a risk.

Dr. Munzer mentioned that the surgeon general's

report is, quote, the gold standard. Dr. Munzer didn't

examine Mr. Schuman. He reviewed the records. His reaction

to secondhand smoke may be transient and is, quote, minor.

There are, he says, he admits, other possibilities. Finally,

he says there is no specific likelihood that Mr. Schuman will

develop a disease due to secondhand smoke in this case.

Dr. Granite says smoke contributes to Mr. Shuman's

symptoms. That was when inside smoke -- Dr. Granite's

evaluation, that was when there was inside smoke coming in

through the walls.

The report of Dr. Granite was not admitted.

However, there was testimony that was made on the record, and

he said that it was a possible influence on the symptoms and,

quote, the plaintiff or Mr. Schuman appears to be well. He

was able to provide no direct or specific link to any medical

problem by Mr. Schuman related to secondhand smoke.

Let's move on to another area, and that is

mitigation. Kevin Hammett said closing the windows stops the

smoke. The suggestion is that for 20 minutes a day, you

close the windows on that side of the home and, if Kevin

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Hammett is to be believed, that would take care of it.

Perhaps a better solution would be to put a 20-inch

exhaust fan in the kitchen window, open a window on the other

side of the unit, bring in fresh air into the unit, and blow

away any chance of secondhand smoke coming in.

I'll talk about, once again, my everyday

experiences, and this really doesn't -- certainly not

dispositive, but I have a pilot's license. If you have a

pilot's license, you learn about prevailing winds. You take

off into the wind; you land into the wind. The prevailing

winds in this area are 330. The wind comes out of the

northwest most of the time.

There was even testimony in this case, and for some

reason I seem to recall somebody talking about it, the

proximity of these units was testified to. The prevailing

winds, more often than not, would blow away from

Mr. Schuman's home toward Mr. Popovic's home. So more often

than not, smoke would blow toward Ms. Ipolito, not toward

Mr. Schuman. But that's just mother nature. We can't rely

on her one way or the other.

I must note that there was some talk about

diminution of value of the home. Mr. Schuman is certainly

qualified -- any person is qualified in Maryland to testify

to the value of their own property, their opinion. That's an

opinion. It's their opinion, to be taken as evidence and

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considered with all of the other evidence.

I can't ignore the fact, and I mentioned it during

the trial, that he then, perhaps, sabotaged any possible sale

by making an unrequired disclosure regarding the secondhand

smoke. We didn't have any testimony from a licensed realtor

about the diminution of value of the property, whether or not

the diminution was due to secondhand smoke or just the market

as it is today.

The housing market is down. Nobody in the room

would dispute that, I don't think. So I have no real

evidence of what, if any, damages might have occurred as a

result of the secondhand smoke as it relates to the

diminution of value of that property.

In its present posture, to grant a permanent

injunction for outside smoking would set a precedent for not

just condos or town homes, but for even single-family homes.

Think about this. There are areas in the county where the

setback for single-family homes is eight feet. For a number

of years I lived in a home that was 20 feet away from my

neighbor's home.

So we're not just talking about the added

inconvenience from close proximity of a town home or an

apartment complex, but if we apply the 20-foot standard or

perhaps, the expanded 75-foot standard, single-family homes

would be involved. Anybody in any home 75 feet away, if we

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use that number, could bring the action.

When I lived in that home that was 20 feet away,

the windows faced each other. It was less than the 25-foot

standard.

The neighbors I had up until a few months ago, at

the home where I am now, often sat right in front of their

garage and would sit out there and smoke. It could not have

been more than about 35 feet from my bedroom window.

Periodically, if the window was open, I knew that they were

smoking.

So that would apply not just to the added

difficulties from living in close proximity, but to any

single-family home within 25 to 75 feet.

The legislature has looked at this, both state and

federal. There's no smoking in restaurants in the State of

Maryland. You cannot smoke on an airplane. You can't smoke

in the courthouse. I mentioned that a few moments ago.

This is a legislative decision. The legislatures

looked at secondhand smoke. They've looked at that issue,

and they've made a determination, and they have chosen, at

least up to this point, not to ban secondhand smoke generally

or all smoking or to limit it to certain smoking areas.

We hear about activist courts. I'm not going to

take a position one way or the other as to whether I'm

activist or not, but I do believe and I'll tell you right now

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that I think if this decision is to be made, it is a

decision, in my view, that's going to have to be made by the

legislature.

There are any number of things that are

inconvenient and annoying. Hurricane Irene was certainly a

nuisance. That was mother nature. We couldn't prevent it.

We could try to minimize the damage by preparing for it. We

could certainly correct the damage or repair the damage

afterward.

This is a little different. This is a voluntary

act. This is something that can be banned or not. My point

is that not all nuisances are necessarily actionable.

Driving can be dangerous. If you step off the

curb, it's dangerous. There are risks involved. Driving

isn't banned. It's a danger to people. There are accidents

every day. Millions and perhaps billions of dollars in

damages, but we don't ban driving, obviously.

These things are regulated. Smoking has been

regulated. The legislature has made that determination as to

how to do it.

Without a more specific and clear expression --

and, again, remember that the plaintiff has the burden of

proof -- of an actual harm, not just from an admittedly

offensive odor, I cannot find that there is an actionable

nuisance in this case. There are many nuisances in life; not

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all of them are actionable.

There's a question as to whether or not this is a

nuisance per se, which would be an act, occupation or

structure -- I'm quoting from the opinion of the Court of

Special Appeals -- which is a nuisance at all times, under

any circumstances, regardless of location or surroundings.

Well, smoking out in front of this courthouse is

not found to have been an actionable nuisance. That's one of

those locations. That's a surrounding. If you go to a

smoking bar, it's not banned there, by definition.

So I can't find that it's a nuisance per se. It's

not something that is a nuisance at all times, under any

circumstance, regardless of location or surrounding.

My one fear is I've gone through all the

submissions, I have my little yellow tabs, and I'm sure I'll

forget something. So give me a moment to make sure I don't.

I had made a note to myself. There was an

interesting case. When we talked about offensive odors, and

there was the case about the hamburger joint in Washington,

D.C. There's a little bit of a difference there. That's an

actual harm they found there, and it was an all day instance,

not just 20 minutes or 40 minutes out of a day or even an

hour. A little different.

I guess the real key in this case -- and I'll quote

from one of the cases previously quoted from, the Maryland

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case, Five Oaks Corporation versus Gathmann. "It is true

that there are certain inconveniences and discomforts

incident to living in a city or a thickly-settled suburban

community. These discomforts must be endured as part of the

privilege or at least of the fulfillment of the desire of

living in close proximity to other people. These discomforts

must not be more than those ordinarily to be expected in the

community and incident to the lawful use of the offending

property or business. If they exceed what might be

reasonably expected and caused unnecessary damage or

annoyance, then the Court, in an appropriate case, will ask."

I can't find, in this case, that it is

unreasonable, and I will quote from Mr. Schuman, and you can

find this on his supplemental brief at page 25. He's talking

about the symptoms and respiratory issues. "I experienced

them when I experienced the smoke. I didn't experience them

when there wasn't smoking, and I didn't experience them when

the Popovics stopped smoking inside." That's his testimony.

Having said all of that, I find for the defendant

in count 1.

I find for the defendant in count 2.

I find for the defendant in count 3.

I find for the defendant in count 4.

I find for the defendant in count 5. And I don't

know what the standard of care is for the board in this case.

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I don't have sufficient testimony.

I find for the defendant in count 6. I am not

going to issue a declaratory judgment that all secondhand

smoke is bad or a nuisance per se or must be banned. The

preliminary injunction is moot.

I will find for the plaintiff in count 9, to the

extent that I will grant, by consent, a permanent injunction

with regard to inside smoking by Mr. and Mrs. Popovic.

Beyond that, I will find for the defendant in count 9.

It's been a long case. I hope I've given

sufficient record for everybody to go wherever they go from

here. Do I find irreparable injury in this case? No, I

can't:

Let me make sure I haven't missed anything else. I

can also quote Mr. Popovic. Earlier on he said, "this is the

wrong example, the wrong case and the wrong time" or

something to that nature, and I think that's, perhaps, a good

summation of the case.

Thank you.

MR. SZYMKOWICZ: Thank you, Your Honor.

MR. FISHER: Thank you, Your Honor.

THE DEPUTY CLERK: Do you want the exhibits

returned?

THE COURT: Yes, we can return the exhibits.

MR. SZYMKOWICZ: Your Honor, are we allowed to take

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the surgeon general's reports?

THE COURT: My view is you're officers of the

Court. You're not going to destroy or tamper with or fool

with the evidence --

MR. FISHER: I don't have a problem with that. I

just want to make sure the record is complete.

(The trial concluded at 1:45 p.m.)

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