Davis v. Echo Valley Condo. Ass'n

• Decision Date: 07 November 2018
• Docket Number: Case Number 17-12475
• Citation: 349 F.Supp.3d 645
• Parties: Phyllis DAVIS, Plaintiff, v. ECHO VALLEY CONDOMINIUM ASSOCIATION, Casa Bella Property Management, Inc., and Wanda Rule, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

349 F.Supp.3d 645

Phyllis DAVIS, Plaintiff,
v.
ECHO VALLEY CONDOMINIUM ASSOCIATION, Casa Bella Property Management, Inc., and Wanda Rule, Defendants.

Case Number 17-12475

United States District Court, E.D. Michigan, Southern Division.

Signed November 7, 2018

349 F.Supp.3d 649

Justin A. Barry, Alan J. Gocha, Brooks Kushman P.C., Southfield, MI, for Plaintiff.

Benjamin J. Henry, Makower Abbate Guerra Wegner Vollmer PLLC, Farmington Hills, MI, Kay R. Butler, Zachary S. Jugan, Starr, Butler, Alexopoulos & Stoner, PLLC, Southfield, MI, for Defendants.

OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE MARK CLOR'S TESTIMONY, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DISMISSING CERTAIN DISCOVERY MOTIONS, AND DISMISSING THE AMENDED COMPLAINT WITH PREJUDICE

DAVID M. LAWSON, United States District Judge

Plaintiff Phyllis Davis, an asthmatic, alleges that defendant Echo Valley Condominium Association violated the Fair Housing Amendments Act when it did not accommodate her sensitivity to secondhand smoke by banning smoking throughout the condominium complex, including within private residences. The plaintiff also brought claims under state statutory and common law. Davis has moved for summary judgment on liability. Echo Valley and its former property manager, Casa Bella Property Management, Inc., also moved for summary judgment, arguing, among other things, that the accommodation Davis demands is unreasonable, particularly because smoking within one's home is not illegal. Davis has not identified evidence that creates a material question of fact on all the elements of her claims.

349 F.Supp.3d 650

Therefore, the Court will deny the plaintiff's motion for summary judgment, grant the defendants' motion for summary judgment, and dismiss the amended complaint with prejudice.

Davis also contends that testimony from a heating contractor about the furnace duct work in Davis's building should be rejected for a variety of reasons. None of them have merit, so Davis's motion to strike his testimony will be denied as well.

I.

Plaintiff Phyllis Davis is a breast cancer survivor, who has asthma and multiple-chemical sensitivity disorder. She says that her medical conditions substantially interfere with her ability to breathe when she is exposed to certain chemicals and irritants. A major offender is cigarette smoke.

Davis lives in Unit 214 in the Echo Valley subdivision, a condominium she purchased on 2004. Defendant Echo Valley Condominium Association is responsible for governing and managing eight buildings in the Echo Valley subdivision. On November 10, 2014, defendant Casa Bella Property Management, Inc. contracted with Echo Valley to manage the property within the subdivision. Casa Bella's contract expired at the end of 2017, and it no longer provides property management services to Echo Valley.

The units at Echo Valley are subject to a master deed and bylaws as amended, and to covenants, conditions, and restrictions found in those documents or created based on them. The bylaws vest in Echo Valley's board of directors the power to make rules "necessary for the administration of the affairs of the Association," including "[r]easonable regulations ... concerning the use of the common elements." The interior space of a condominium unit is not considered a "common element" within the master deed's definition. The bylaws prohibit "immoral, improper, unlawful or offensive activity" in the common elements and the individual units. There is no ban on smoking at the condominium complex.

Davis's Unit 214 is one of four in the building. It shares a common hallway and stairs with the three other units: Unit 114, Unit 115, and Unit 215. The parties dispute whether these spaces share a ventilation system that circulates air (including pollutants and contaminants) among the connected units.

In 2012, former defendants Moisey and Ella Lamnin leased Unit 115 to defendant Wanda Rule. Rule occupied the unit until December 31, 2017. During Rule's tenancy, the plaintiff complained that Rule and her guests regularly smoked tobacco and other substances in Unit 115, which Davis says she could smell from her unit. On April 3, 2018, plaintiff's counsel informed defense counsel that "someone in Ms. Davis' building has started smoking cigarettes and marijuana." When prompted for more detail as to the source of the smoke, plaintiff's counsel replied that he was "investigating" the source, but he believed that "it may be coming from Unit 114."

Davis believes that the secondhand smoke has exacerbated her health conditions, and, as a breast cancer survivor, exposes her to an increased risk of cancer and cancer-related problems. A doctor at Davis's medical care facility stated that exposure to tobacco is detrimental to Davis's health and increases the risk of her suffering an asthma attack.

In addition to tobacco-related smoke, Davis has complained that other smells and fumes were problematic. In a January 31, 2015 letter, Davis informed her neighbor that the cooking smells emanating from the neighbor's unit "engulfed" her condo and she "almost had an asthma attack."

349 F.Supp.3d 651

She requested that her neighbor open her window and turn the exhaust fan on when frying or grilling. In that same letter, the plaintiff complained about and demanded accommodations relating to slamming doors and FedEx ringing the doorbells of other residents' units.

Davis says that she has made the defendants aware of her medical conditions on several occasions and asked that the smoking issue be addressed. On March 1, 2016, Davis sent Colleen O'Rourke, an agent of Casa Bella, two emails that raised Davis's concerns about the smoking issue. In the first email, Davis asked O'Rourke what can be done to make owners accountable for smoke that enters the shared ventilation system and stated that they should be able to make smokers insulate their doors and vents. Davis wrote that asthmatics suffer when forced to breathe in second- and third-hand smoke toxins, and that something had to be done about the smoking nuisance that was affecting Davis's breathing and causing constant coughing and near asthma attacks. In the second email, Davis wrote that because of the heavy smoke, she must turn the heat up and open the windows in her condo so that she can breathe. O'Rourke promptly responded to Davis's emails and explained that because the Echo Valley bylaws and state law did not prohibit smoking in one's home, she did not believe anything could be done. The email suggested that Davis's complaint could be placed on the condo board's meeting agenda to see if the board would like an attorney's opinion on the matter.

Davis took up O'Rourke on her offer and asked that her issue be placed on the upcoming board meeting agenda, seeking to have smoking designated a nuisance under the bylaws. She also suggested that the owner of Unit 115 reseal the gaps in his doors and reevaluate his vents. The item was taken up at the March 15, 2016, board meeting. Board member Tony Barker suggested that Davis and other aggrieved residents cover their door base openings to prevent the smell from coming into their units. The board apparently questioned whether smoking may legally be labeled a health nuisance and did not reach a decision.

On March 29, 2016, O'Rourke sent a letter to the Lamnins that mentioned complaints regarding the heavy cigarette smoke emanating from Unit 115 and requested, on behalf of the condo board, that the Lamnins assist in keeping the smell contained to their unit. O'Rourke suggested that the odor could be prevented from spreading throughout the building by smoking outside on the balcony or deck, using air purifiers, or insulating the entry door. O'Rourke noted that there was no rule or regulation that prohibited smoking in one's home, but that it could be considered a nuisance to those who do not smoke. O'Rourke later testified that the board had agreed that the letter would be sent with the wording that Davis requested.

On February 21, 2017, the board held a meeting; the minutes reflect that Davis requested that another letter be sent to the owners of Unit 115 about the heavy smoking. Davis apparently told the board that the smoke was infiltrating common areas and other units, and the smell was horrendous and was bringing down the property value of the building.

On March 6, 2017, the Association installed a fresh air system on Davis's furnace ductwork to help with the smoke problem. Mark Clor, the licensed contractor who worked on Davis's system, testified that he installed the fresh air system to allow Davis's furnace to draw in air from the outside of the building. Clor also averred that each unit has its own furnace

349 F.Supp.3d 652

and ductwork. He testified at his deposition that after the fresh air system was installed, Davis told him that she thought it made a difference. He said that he was personally familiar with the heating and cooling system that services Davis's unit as well as the connected units and asserted that none of the units draw air from or ventilate air into the other connected units. He also stated that none of the...