DAVID S. SCHUMAN
GREENBELT HOMES, INC.
Meredith, Zarnoch, Davis, Arrie W. (Retired, Specially Assigned), JJ.
A Mills Brothers hit from the 1930's asks the musical question:
Where do they go,
The smoke rings I blow each night?
Oh, what do they do,
Those circles of blue and white? This litigation stems in large part from a neighbor's unhappiness with the ultimate location of such secondhand tobacco smoke.
Appellant David S. Schuman sued his cooperative housing association, Greenbelt Homes, Inc. ("GHI"), for breach of the implied covenant of quiet enjoyment and negligence. He also sued his neighbors, Darko and Svetlana Popovic, for breach of contract, nuisance, trespass, and negligence. Schuman's claims arose from his neighbors' smoking that caused secondhand cigarette smoke to enter his patio and home. After a bench trial, before the Honorable Albert W. Northrop, the Circuit Court for Prince George's County ruled against Schuman. For the following reasons, we agree and affirm the decision of the circuit court.
FACTS AND LEGAL PROCEEDINGS
Greenbelt Homes is a housing cooperative located on Ridge Road in Greenbelt. It is a nonstock, nonprofit corporation organized under the laws of Maryland. Cooperatives are a form of home ownership where the owners are members of the corporation and own a share of ownership in it. Md. Code (1975, 2007 Repl. Vol.), Corporations and Associations Article ("C&A"), § 5-6B-01(f) and (g). Each member has the right to use a particular dwelling unit. Id. At least in the case of Greenbelt Homes, the interest of each member is represented by a Mutual Ownership Contract. See Green v. Greenbelt Homes, Inc., 232 Md. 496, 498 (1963).
The units at GHI are townhouses that share common walls. Since 1995, Schuman has been a resident, member, and shareholder of GHI. His unit immediately adjoins the unit owned by the Popovics, who moved into the cooperative in 1996. Their townhouses are two stories with painted brick exteriors. The back of each townhouse has a door on one side, with a small patio next to it that is covered by an overhang. Next to the patio is a small garden.
Schuman complained to GHI of cigarette smoking by the Popovics the same year they moved in. Schuman was concerned that cigarette smoke was entering his home, mainly in the bathroom. GHI sealed the cracks between the two units to try to mitigate Schuman's exposure to the smoke. Afterward, GHI hired an Industrial Hygienist to test the air in Schuman's unit. At that time, no detectable level of nicotine was found. Schuman said that the problem was resolved, until 2008.
In 2008 spanning into 2009, Schuman renovated his kitchen, dining room, a second-floor laundry closet, and a half-bath. During the renovations, some drywall was removed on the wall shared with the Popovics' unit. When Schuman started smelling cigarette smoke in his unit again, he sent several letters to both the Popovics and GHI. The Popovics purchased a new air filter but Schuman still smelled the smoke. Further discussions between GHI, Schuman, and the Popovics did not solve the problem.
Since GHI's management could not adequately address Schuman's complaint, the management referred the case to the Member Complaints Panel. On September 28, 2009, Schuman presented his evidence to that body. Eventually, GHI's president sent Schuman a letter explaining GHI's position. The cooperative would seal any additional areas in Schuman's unit, but it would not request that the Popovics stop smoking, because GHI is not a smoke-free community.
On March 10, 2010, Schuman filed a complaint in the circuit court against GHI for breach of the implied covenant of quiet enjoyment and negligence. He sued the Popovics for breach of contract, trespass, nuisance, negligence, and for preliminary and permanent injunctions. He also requested a declaratory judgment that smoking was a nuisance under GHI's membership contract.
The same month, Mrs. Popovic became ill and was diagnosed with a brain tumor. This caused Mrs. Popovic to quit smoking and Mr. Popovic to stop smoking inside his unit. Mr. Popovic continued to smoke outside on the patio in the evening for twenty minutes to an hour and a half. In April 2012, Mrs. Popovic passed away of a cancerous brain tumor.
Addressing Schuman's prayer for declaratory and injunctive relief, the circuit court denied the motion for declaratory relief. However, because Mr. Popovic consented to an injunction against smoking inside the unit, the court granted the preliminary injunction with respect to inside smoking. The court denied the request for a preliminary injunction to halt Mr. Popovic from smoking outside, because Schuman failed to show that he would suffer irreparable harm. The court explained that, based on this evidence, the only direct damage to Schuman was odor. Yet Schuman did not complain of the odor; he complained of health problems. To that end, Schuman did not produce any medical records of an unfavorable health condition or any evidence of a real injury. Schuman's expert's report, according to the court, dealt only with potential injury because of the Popovics' smoking inside their unit, and therefore, would not be relevant to any injury caused by smoking outside the unit. Schuman also did not show that the smoking diminished his property value.
Schuman appealed to this Court, which affirmed the trial court's ruling on the preliminary injunction and held that the denial of the declaratory judgment was not yet appealable. See Schuman v. Greenbelt Homes, Inc., No. 1538, September Term, 2010 (Md. Ct. Spec. App. June 8, 2011). This Court concluded that Schuman could not attack the circuit court's ruling to grant the preliminary injunction prohibiting the Popovics from smoking cigarettes inside their unit because he prevailed, albeit on the basis of consent. The Court also rejected all claims stemming from Mrs. Popovic's smoking since the circuit court found that she no longer smoked. Thus, the only basis for Schuman's claims was Mr. Popovic smoking on his patio.
In affirming the denial of the preliminary injunction, we determined that the evidence did not support a finding that smoking was a nuisance per se because the evidence of harm from secondhand smoke was only a potential risk of disease. Additionally, we concluded that the circuit court did not abuse its discretion in finding a lack of irreparable injury. Schuman offered no medical testimony that he had suffered any injury. Schuman's neighbor had testified that shutting the window and running a small fan stopped the smell of smoke. Thus, this Court determined that Schuman was not being harmed when shutting his window and turning on a fan stopped the smell. Additionally, Schuman's expert had opined that the presence of nicotine in Schuman's unit could only be remedied by eliminating smoking inside the Popovics' unit. In light of this evidence, we said that the circuit court logically could have reasoned that Schuman's problem was resolved when the Popovics stopped smoking inside their unit. Finally, this Court said that if Mr. Popovic only smoked four to six cigarettes a night on his patio, the circuit court would have been within its discretion to find that this was not a substantial or unreasonable interference with the use and enjoyment of Schuman's property.
Subsequently, in the circuit court, GHI filed a motion to dismiss and/or for summary judgment on Schuman's claims against GHI. The circuit court granted the motion as to the declaratory judgment but denied the motion on the other counts. After a six-day trial, the circuit court, in November 2011, granted Schuman's request for a permanent injunction but only against Mr. Popovic's indoor smoking and on the basis of his consent. However, the court found against Schuman on all other claims.
The circuit court found deficiencies in Schuman's case, centering on the lack of harm or interference with Schuman's use and enjoyment of his property. At the most basic level, no expert testified that Schuman suffered any significant injury from secondhand smoke. One expert, Dr. Alfred Munzer, testified that there w as no specific likelihood that Schum an would develop a disease from secondhand smoke. Schuman testified that the smoke caused him to have headaches, watery eyes, and respiratory infections, but the court explained that Schuman testified that these symptoms occurred because of smoke seeping into his home when both Popovics were smoking inside, not when Mrs. Popovic stopped smoking and Mr. Popovic started smoking outside only.
The court found that the amount of smoke entering Schuman's home when the windows were open was inconclusive. Schuman's expert, James L. Repace, was not clear on how far smoke travels before it dissipates. In fact, he changed his mind between the preliminary injunction hearing and trial and said it was an evolving area. The court also found that Repace had some bias because he was the father of one of Mr. Schuman's friends. Finally, Repace tested the courthouse - - where smoking was prohibited - - for nicotine in the air and the reading was similar to the reading he had received in Schuman's home.
The circuit court also determined that if smoke were entering Schuman's home when the windows were open, it was something that could have been easily remedied. Schuman testified he could not shut the windows before smoke entered his home and smoke came in even if the windows were shut. But, there was testimony from two neighbors, Kevin Hammett and Dorothy Ipolito, that the smoke from the Popovics' patio did not penetrate their homes if their windows were shut. The court also said that based on the neighbors' testimony, an exhaust fan could alleviate the smoke that entered Schuman's home. ...