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 Georges County

Albert W. Northrop, Associate Judge

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APPELLANT DAVID S. SCHUMANS 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
i
TABLE OF CONTENTS

TABLE OF CONTENTS OF BRIEF........i

TABLE OF STATUTES, RULES AND AUTHORITIES CITED IN
APPELLANTS BRIEF.................................................................................iv

TABLE OF CASES CITED IN APPELLANTS BRIEF.................................iv

STATEMENT OF THE CASE.........1

STATEMENT OF QUESTIONS PRESENTED............3

STATEMENT OF MATERIAL FACTS.......4

Background of GHIs Housing Cooperative....4

GHIs 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. Schumans and Ms. Ipolitos Homes.........6

Effects of the Popovics Smoking on Ms.
Ipolito.7

Effects of the Popovics Smoking on Mr.
Schuman...7

Surgeon Generals Reports on Secondhand Smoke.8

Mr. Schumans Secondhand Smoke Expert, James L.
Repace, M.Sc.10

Mr. Schumans Medical Expert, Alfred Munzer, M.D...11

Mr. Schumans Complaint to GHIs Member Complaint
Panel...12

ii
GHIs Failure to Take Action to Stop the Migration of
Secondhand Smoke from the Popovics Home into Mr.
Schumans Home..14

The Circuit Courts Oral Decision After Bench Trial....15

Mr. Schumans Notice of Appeal.17

APPELLATE STANDARD OF REVIEW......17

ARGUMENT.....18

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

A. Under GHIs 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


iii
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

APPENDIXAppendix 1

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

iv
Circuit Courts Final Order dated November 3, 2011Appendix 17


Table of Statutes, Rules and Authorities
Cited in Appellant David S. Schumans 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,
20068-10

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. Schumans 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
v

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 (8
th
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.. 6
th

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

vi
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, 1
st
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

1
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 GHIs cooperative, both Mr. Schuman and the Popovics are
bound by GHIs 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. Schumans
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
2
respiratory infections, and loss of sleep; moreover, the Circuit Court took
judicial notice of the U.S. Surgeon Generals 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 GHIs 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 MOCs 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 GHIs
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. Its 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
3
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 GHIs
membership as a whole after GHIs 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 GHIs 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
Schumans 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. Schumans rights found in GHIs
MOC,
(2) failing to recognize and apply the common law of
nuisance in denying Mr. Schumans request for a permanent
injunction precluding the Popovics from smoking on their
4
property, and
(3) denying Mr. Schumans request for monetary damages
based on the migration of secondhand smoke?
STATEMENT OF MATERIAL FACTS
1

Background of GHIs Housing Cooperative
Both Mr. Schuman and the Popovics are members of GHIs
cooperative housing association and are parties to GHIs 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].
GHIs Nuisance Clause in the Mutual Ownership Contract
GHIs 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.
5
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 GHIs housing
cooperative with the Popovics living between Mr. Schumans and Ms. Dory
Ipolitos 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].
"Front" or "Service" Side "Rear" or "Garden" Side
6
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 wifes sickness, it could be for
a longer period. [E. 354-55].
Migration of Secondhand Smoke
from the Popovics Home to Mr. Schumans and Ms. Ipolitos 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
7
migrating from through the walls, and obviously, could never stop smoke
from migrating from the Popovics outdoor patio into Mr. Schumans and
Ms. Ipolitos 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.
8
[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 couldnt sleep. I felt nauseous at times. I had
headaches. It was just a terrible, terrible situation. [E. 402]. Mr.
Schuman stated that he didnt 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 didnt experience them when there
wasnt smoking, and I didnt experience them when the Popovics stopped
smoking inside. [E. 416]. With regard to the Popovics outdoor smoking,
Mr. Schuman testified that
I cant 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 cant 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 dont want to have to run the air
conditioner and pay for that. [E. 467].

Surgeon Generals 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
9
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 Generals
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. Schumans 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.
10

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. Schumans 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. Repaces 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. Schumans 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. Schumans average daily
SHS-nicotine exposure produces an estimated excess chronic mortality
11
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. Schumans home while
Mr. Popovic was smoking on his outdoor patio and found that this smoke
entered Mr. Schumans 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. Schumans home,
albeit at lower levels than if the windows were open. [E. 774].
Mr. Schumans 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 thats 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 . . .
12
[and] generally, [the body] defends itself, if you will, against
the offense, against the - - thats 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
doesnt 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. Schumans Complaint to GHIs Member Complaint Panel
In January 2009, when the Popovics smoking became unbearable,
and after Mr. Schumans letters to the Popovics had no effect, Mr.
Schuman filed a complaint with GHIs Member Complaint Panel under
procedures set forth in GHIs Member Handbook. [E. 1582-89, 1621-22].
On September 29, 2009, GHIs Member Complaint Panel received
testimony from Mr. Schuman and Mrs. Popovic in response to Mr.
Schumans 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.
13
Repace. [E. 1642]. During this hearing, Panel Member Ed James stated,
I am impressed by Mr. Repaces report. The Panel took it as a given that
secondhand smoke from the Popovics smoking migrated into Mr.
Schumans 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]. GHIs 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]. GHIs General
Manager, further testified at trial that secondhand smoke is irritating and
malodorous, that sounds, smells, scents will pass between units [within
GHIs complex], that secondhand smoke places non-smokers at
significant risk of health problems and that secondhand smoke in Mr.
Schumans home is considered a hazard. [E. 608, 610, 615, 622]. GHIs
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]. GHIs President also conceded that neither
the Popovics nor GHI presented any evidence to the Member Complaint
Panel in opposition to Mr. Schumans claims. [E. 1173-74]. GHIs
President further testified that it was not terribly a surprise for the Board
to learn that secondhand smoke is entering Mr. Schumans unit and that
any member who has lived next to a smoker would tell you that the odor
of secondhand smoke comes in, and thats just true. [E. 1172-73].
14
Additionally, GHIs 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. Schumans
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].
GHIs Failure to Take Action to Stop the Migration of Secondhand
Smoke from the Popovics Home into Mr. Schumans 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. Schumans home, GHIs Member
Complaints Panel published a written decision with regard to Mr.
Schumans 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]. GHIs President stated at trial that
there are times when members cannot resolve the issue between
themselves and that [i]f they cannot resolve it, its sometimes best for one
of the members to move out. [E. 1208].
The Circuit Courts 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. Schumans home. However, despite this
uncontroverted evidence, the Circuit Court refused to grant Mr. Schumans
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. Schumans motion for a
declaratory judgment that the Popovics smoking violated GHIs 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 theres 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. Its harmful. It presents a risk. E.
1428]. Additionally, Judge Northrop found that GHIs 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 Northrops 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. Theyve looked at that issue,
and theyve 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, thats 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 GHIs 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 GHIs 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. Schumans Notice of Appeal
On November 28, 2011, Mr. Schuman filed a timely notice of appeal
of the Circuit Courts 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 GHIs 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. Schumans 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.
Schumans 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,
19
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 GHIs 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. Schumans
health, at worst; therefore, the Circuit Courts refusal to enforce this
contract is in error.
A. Under GHIs 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
GHIs cooperative housing cooperative violated the terms of GHIs 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 GHIs 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
members 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
21
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 plaintiffs 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 neighbors lease included a clause against
excessive noise and that the landlords refusal to enforce that provision
22
ratified and encouraged the neighbors 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].

23
In the instant case, GHI had the ability to stop the migration of
secondhand smoke from Popovics home to Mr. Schumans 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
members 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 GHIs 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 defendants] 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 (8
th
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, 1
st
Dist. Nassau
County January 20, 2011)

In Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op.
50054U, *1 (Dist. Ct. of NY, 1
st
Dist. Nassau County January 20, 2011),
27
the court stated that [i]n modern high-rise apartment settings, a tenants
home is not [emphasis in original] the tenants castle. Landlords of such
dwellings have a corresponding duty to prevent one tenants habits from
materially interfering with another tenants right to quiet enjoyment. When
a tenants smoking results in an intrusion of second-hand smoke into
another tenants 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
others right to privacy and a responsibility not to invade a
neighbors 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 buildings 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.. 6
th
App. Dist., Lucas County. August
20, 2004)

In Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct.
of App.. 6
th
App. Dist., Lucas County. August 20, 2004), the plaintiff sued
his landlord after the landlord failed to take action with regard to the
plaintiffs 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
courts findings were supported by credible evidence that smoke was
infiltrating [the plaintiffs] 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 condominiums
declaration contained a nuisance clause. Id. at *2-3. The Bosser court
entered judgment on the plaintiffs 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 ones home interfered with by smoke, odor,
and similar attacks upon ones 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 tenants 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.

31
D. Conclusion.

Whether the Popovics secondhand smoke results in a breach of
contract for violating GHIs MOC or is a nuisance under the common law,
the undisputed evidence presented leads to only one conclusion
judgment in Mr. Schumans 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. Schumans home and patio. At all relevant times, the Popovics knew
that their smoke was trespassing onto Mr. Schumans 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. Schumans 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. Schumans home. As a direct and proximate
result of the Popovics and GHIs 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 GHIs 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 courts 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 GHIs failure to take
action to enforce the nuisance clause in GHIs 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 corporations board of directors has engaged in conduct that represents
a breach of their fiduciary obligations. In the instant case, GHI, as Mr.
Schumans landlord, owed fiduciary duties based upon both tort and
contract theories, to Mr. Schuman to enforce its Mutual Ownership
Contracts nuisance clause by taking steps to prevent secondhand
smoke from migrating from the Popovics home into Mr. Schumans 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. Schumans comfort and
enjoyment of his home and materially diminished the value of Mr.
Schumans 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 GHIs Mutual Ownership Contract and
the denial of his motion for a permanent injunction regarding Mr. Popovics
patio smoking. Additionally, Mr. Schuman requests that this Honorable
35
Court set aside the Circuit Courts rulings that Mr. Schuman was required
to take his complaint to GHIs 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. Schumans 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










36




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.
37

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 Consortiums 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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