Davis v. Echo Valley Condominium Association, 121919 FED6, 18-2405

Docket Nº:18-2405
Opinion Judge:MURPHY, Circuit Judge.
Party Name:Phyllis Davis, Plaintiff-Appellant, v. Echo Valley Condominium Association; Casa Bella Property Management, Inc., Defendants-Appellees.
Attorney:Alan Gocha, BROOKS KUSHMAN P.C., Southfield, Michigan, for Appellant. Kay Rivest Butler, STARR, BUTLER, ALEXOPOULOS & STONER, PLLC, Southfield, Michigan, for Appellees. Alan Gocha, Mark A. Cantor, Justin A. Barry, BROOKS KUSHMAN P.C., Southfield, Michigan, for Appellant. Kay Rivest Butler, STARR,...
Judge Panel:Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.
Case Date:December 19, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Phyllis Davis, Plaintiff-Appellant,

v.

Echo Valley Condominium Association; Casa Bella Property Management, Inc., Defendants-Appellees.

No. 18-2405

United States Court of Appeals, Sixth Circuit

December 19, 2019

Argued: June 20, 2019

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-12475-David M. Lawson, District Judge.

ARGUED:

Alan Gocha, BROOKS KUSHMAN P.C., Southfield, Michigan, for Appellant.

Kay Rivest Butler, STARR, BUTLER, ALEXOPOULOS & STONER, PLLC, Southfield, Michigan, for Appellees.

ON BRIEF:

Alan Gocha, Mark A. Cantor, Justin A. Barry, BROOKS KUSHMAN P.C., Southfield, Michigan, for Appellant.

Kay Rivest Butler, STARR, BUTLER, ALEXOPOULOS & STONER, PLLC, Southfield, Michigan, for Appellees.

Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

Phyllis Davis suffers from asthma but lives in a condominium complex that allows residents to smoke in their condos. Davis asserts that the smell of smoke regularly emanating from a neighbor's condo aggravated her asthma. Unsatisfied with her condo association's efforts to address the situation, she sued the association and its property manager. Davis alleged that these defendants, by refusing to ban smoking, discriminated against her under the Fair Housing Amendments Act, violated various condo bylaws, and allowed a tortious nuisance to persist. The district court rejected Davis's claims on summary judgment. We affirm.

I.

In the 1970s, a developer built the Echo Valley Condominium complex in Farmington Hills, Michigan. The complex is governed by a master deed, bylaws, and the Michigan Condominium Act, Mich. Comp. Laws § 559.101-.276. The bylaws impose many regulations on condo owners. They contain several specific bans, including, for example, a ban on keeping a dog or cat in a condo. They also contain general rules like the following: "No immoral, improper, unlawful or offensive activity shall be carried on in any apartment or upon the common elements, limited or general, nor shall anything be done which may be or become an annoyance or a nuisance to the co-owners of the Condominium."

The Echo Valley Condominium Association-an association of co-owners organized as a nonprofit corporation that we will call the "Association"-manages the Echo Valley complex. A board of directors made up of volunteer co-owners oversees this Association. The bylaws give the board "all powers and duties necessary for the administration" of the Echo Valley complex, including maintaining the common elements, collecting the assessments, and enforcing the bylaws. The board also must contract with a professional manager to carry out its duties. At most times relevant here, the Association contracted with Casa Bella Property Management, Inc., to help run the complex.

The minutes from the regular meetings of the Association's board show that condo living can be trying, and board membership a thankless task. The board fields complaints ranging from the need for repairs ("We have had nine A.C. units break down since we last [met]"), to non-residents sneaking into the pool ("I could not believe the condition of the water after the guests left"), to inflamed passions from the pet ban ("another lady is very upset and is considering taking [a board member] to court if she stays on the board with a pet").

This case concerns another fact of life in Echo Valley: Condo owners regularly detect odors from each other's condos. Residents, for example, have complained about the smell of their neighbors' cooking. Some residents also smoke cigarettes in their condos. Michigan law permits smoking in one's home, cf. Mich. Comp. Laws § 333.12603(1), and the Association has long read the bylaws to permit residents to smoke in their units. (The bylaws say nothing specific about smoking.) Yet neighbors can sometimes smell this smoke, and in-condo smoking has produced complaints to the Board over the years. Some residents have even moved out because of the Association's policy allowing smoking.

Davis, a cancer survivor with "a history of asthma and multiple chemical sensitivity disorder," seeks to change the Association's smoking policy through this suit. In 2004, she bought a condo on the second floor of a four-unit building in the complex. The condos in her building share a common entryway, basement, and attic. A 2015 letter that Davis addressed to "Dear Neighbor" suggests that smells and sounds carry across her building. As for smells, Davis told her neighbor that she "almost had an asthma attack" because "[t]he smell of whatever you were cooking this morning engulfed my condo." She asked her neighbor to cook with the windows open and exhaust fan on. As for sounds, Davis added: "Also, please stop slamming your door when you come in as it is very loud."

Davis's more recent concern has been cigarette smoke. Moisey and Ella Lamnin owned a condo on the first floor of Davis's building and began renting it to Wanda Rule in 2012. At some point not apparent in the record, the smell of smoke from the Lamnins' condo (presumably from Wanda Rule and her husband) started entering Davis's unit and lingering in the building's common areas. According to Davis, the smoke "has significant adverse effects on [her] ability to breathe comfortably."

On March 1, 2016, in her first written complaint in the record, Davis emailed a Casa Bella employee to report that the Lamnins' tenants "do not work, so they are home all day and night chain smoking," which affected her "breathing, causing constant coughing, and near asthma attacks." She asked if the board could "make owners accountable for cigarette and other types of smoke seeping through the cracks of their doors and vents." The Association's board, which at that time included Davis, discussed her complaint at a March 2016 meeting. The board ultimately directed the Casa Bella employee to send a letter to the Lamnins. The letter noted that the board had received complaints about the smoke and that, "[w]hile there is no rule or regulation that prohibits smoking inside one's home, it can be considered a nuisance to those who do not smoke." The letter requested the Lamnins' "assistance in keeping the smell contained," such as by asking their tenants to smoke on their balcony or by further insulating their doors.

Minutes from a board meeting in February 2017 memorialize another complaint. Davis urged the board to send a second letter to the Lamnins about "heavy smoking of cigarettes, weed and etc[.], infiltrating common areas and other units." This time the board chose a different path. It asked Mark Clor, a heating and cooling contractor, to install a $275 fresh-air system on Davis's ductwork. This system allowed Davis's furnace to draw in fresh air from outside rather than stale air from the basement. Other board members who had installed a similar system thought that it eliminated a significant portion of the smoke smell infiltrating their condos.

While Davis told Clor that the system "was helping with the smell of smoke," it did not fully eliminate the odor. In April 2017, her lawyer sent a letter to the Lamnins stating that the smoke pervading her condo affected her health. The letter suggested that the Rules' smoking breached various bylaws and created a common-law nuisance. It asked the Lamnins either to ensure that smoke did not escape their condo or to order their tenants to stop smoking. It also copied the Association's board and made "a formal demand that [it] take further action."

In their response, the Lamnins declined to force the Rules to cease smoking because the bylaws permitted the practice. Yet the Rules, "in the spirit of being good neighbors," volunteered to "purchase and use an air purifier/ionizer[] to clean the air in their unit of any residual cigarette smoke." This solution did not appease Davis either. In "logs" that she kept between May and July 2017, she regularly identified times that she could still smell smoke in her condo or the hallways.

Things came to a head in July 2017. Davis sued the Association, Casa Bella, and the Lamnins (and later amended her complaint to add Wanda Rule). Davis alleged that, by refusing to ban smoking in her building, the Association had discriminated against her because of her disability in violation of the Fair Housing Amendments Act, 42 U.S.C. § 3604(f), and a similar Michigan law. (The parties agree that the state law has the same elements as the federal act, so we do not discuss it separately.) Davis also asserted two other state-law claims: a breach-of-covenant claim for violations of various bylaws, and a nuisance claim. She sought damages and an injunction against smoking in her building.

Davis's suit was apparently...

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