Howard Opera House v. Urban Outfitters, Docket No. 02-7593.

Decision Date05 March 2003
Docket NumberDocket No. 02-7593.
Citation322 F.3d 125
PartiesHOWARD OPERA HOUSE ASSOCIATES and O'Neill, Crawford & Green, P.C., Plaintiffs-Counter-Defendants-Appellees, and City of Burlington, VT, Intervenor-Plaintiff-Appellee, v. URBAN OUTFITTERS, INC., Defendant-Counter-Claimant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Marc B. Heath, Downs Rachlin Martin PLLC, Burlington, VT (David E. Bond, Downs Rachlin Martin PLLC, Burlington, VT, on brief), for Defendant-Counter-Claimant-Appellant.

Eric S. Miller, Sheehey Furlong & Behm P.C., Burlington, VT (R. Jeffrey Behm, Sheehey Furlong & Behm P.C., Burlington, VT, on brief), for Plaintiff-Counter-Defendant-Appellee Howard Opera House Associates.

Eugene M. Bergman, Office of the City Attorney, Burlington, VT, for Intervenor-Plaintiff-Appellee City of Burlington, VT.

Before: KEARSE and B.D. PARKER, Circuit Judges, and RAKOFF, District Judge.*

PER CURIAM:

Defendant-counter-claimant-appellant Urban Outfitters, Inc. ("Urban Outfitters") appeals from a series of related orders of the district court for the District of Vermont (William K. Sessions III, Judge), culminating in judgment for plaintiffs-counter-defendants-appellees Howard Opera House Associates ("Howard") and O'Neill, Crawford & Green, P.C. For the reasons stated below, we affirm the judgment in most respects but remand for clarification of the injunctive relief ordered by the district court.

The pertinent facts are as follows: Urban Outfitters is a retail chain targeting purchasers between the ages of eighteen and twenty-five. In each of its stores, Urban Outfitters plays music that it believes will appeal to those individuals. In 1998, Urban Outfitters and Howard executed a lease (the "Lease") that would enable Urban Outfitters to operate a store on premises owned by Howard for a period of ten years, with an option to renew for five more years. The Lease had no express noise restrictions but, inter alia, required Urban Outfitters to comply "with all applicable Laws." One such law is § 21-13 of the Burlington Code of Ordinances, which provides in relevant part:

... It shall be unlawful for any person to make or cause to be made any loud or unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another or when it endangers the health, safety or welfare of the community. Any such noise shall be considered to be a noise disturbance and a public nuisance.

Burlington Code of Ordinances § 21-13(b)(1).

Urban Outfitters first began playing music in the leased premises on April 2, 1999, almost immediately precipitating complaints from other tenants of the building. When the complaints could not be resolved, Howard and another of its tenants, the law firm of O'Neill, Crawford & Green P.C., brought suit. After that suit was removed to federal court, the district court held a preliminary injunction hearing on May 12, 1999. That same day, with the court's encouragement, the parties entered into an interim stipulation, in which Urban Outfitters agreed to lower the volume setting on its sound system to a specified level during the course of the litigation.

Both sides moved for summary judgment, but the district court, in an opinion and order dated August 16, 2001, denied the motions in substantial part. See Howard Opera House Assocs. v. Urban Outfitters, Inc., 166 F.Supp.2d 917, 935 (D.Vt. 2001). Thereafter, although the plaintiffs had withdrawn their request for any but injunctive relief, the court decided to have the case tried as to liability before an advisory jury in November 2001. On November 30, 2001, the jury returned a verdict, finding that Urban Outfitters was liable to Howard and O'Neill, Crawford & Green, P.C. for nuisance, and liable to Howard for breach of contract and breach of the implied covenant of good faith and fair dealing. The jury also found that Howard had itself breached the implied covenant of good faith and fair dealing.

On January 24, 2002, the district court adopted most of the jury's findings as its own, but concluded that there was insufficient evidence to support the view that Howard had breached the implied covenant of good faith and fair dealing. See Howard Opera House Assocs. v. Urban Outfitters, Inc., No. 2:99-CV-140, at 1-2 (D.Vt. Jan. 24, 2002). The court also explained that it had considered evidence of past noise complaints against Urban Outfitters in arriving at its judgment. See id. at 24 n. 9.

Based on the findings of liability, the district court, on April 17, 2002, issued an injunction ordering that:

1. [Urban Outfitters] and all persons in active concert or participation with it, including its officers, agents, servants, and employees, are enjoined from operating the sound system in the Store in a manner that substantially and unreasonably interferes with other tenants' use of their space in the Howard Opera House.

2. [Urban Outfitters] and all persons in active concert or participation with it, including its officers, agents, servants, and employees, are enjoined to comply with the Burlington Noise Control Ordinance by operating the sound system in the Store in a manner that does not unreasonably disturb other tenants of the Howard Opera House.

This Order shall remain in effect permanently or until further ordered by this Court.

Howard Opera House Assocs. v. Urban Outfitters, Inc., No. 2:99-CV-140, at 4-5 (D. Vt. April 17, 2002).

Urban Outfitters presents six arguments on appeal: first, that the district court erred in holding Urban Outfitters liable for breach of the Lease provision that requires compliance with "all applicable Laws," because the Burlington noise ordinance is facially overbroad and unconstitutionally vague; second, that the April 17, 2002 injunction order is impermissibly vague; third, that the district court erred in admitting evidence of past noise complaints against Urban Outfitters; fourth, that the district court's finding of liability for breach of the implied covenant of good faith and fair dealing cannot be sustained absent evidence of such prior noise complaints; fifth, that the district court erred in holding Urban Outfitters liable to Howard for nuisance; and, sixth, that the district court's interpretation of the notice and cure provision of the Lease was erroneous and that, on a proper interpretation, Howard should have been barred from bringing this suit.

With the exception of the second, these arguments lack substance and can be disposed of briefly. The argument that the Burlington noise ordinance is unconstitutionally vague is effectively precluded by our decision in Pro-Choice Network v. Schenck, 67 F.3d 359 (2d Cir.1994), where we held that an injunction prohibiting "excessively loud sound" that "injures, disturbs, or endangers the health or safety" of others is sufficiently clear to withstand a vagueness challenge. Id. at 373. Here, we have an ordinance that prohibits "loud or...

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