all the material evidence on record supports each and every element of the plaintiff's claims the defendants have no material rebuttal of it's this is at st a simple breach of government in which the association it's very purpose was created to protect we believe that we prevail in one of the seven theories for why there is a breach of covenant and that the defendants fail to enforce that covenant then they're liable does that mean you're conceding that there's just no fact dispute here  of law that's on this period that there is a valid covenant that it does apply to both the valley and to the defendant's costs about which is the property management company there is no question that their requirement is to enforce there is no question that this is that she has a cause of action if they fail to do so she has to pay dues every month to the association what does she get in return enforcement of the bylaws equally across the board if that you so that the bible was just  specifically say anything on smoking one way or the other as far as i could to correct the bylaws don't prevent math labs they don't prevent elephants and they don't prevent rocket launchers but what they do do is they create a standard of the community they say yes we could just have standard nuisance law which is the traditional tort and the claim but everyone who lived in aqua valley agreed to sign up and live in a community by contract that says no not only not nuisances anything that may be or become an annoyance or a nuisance is sufficient to souls and the idea is significant provision wouldn't be hidden and kind of general provisions and if i'm thinking about buying a condominium one of the things i would think about our pets which is specifically covered and certainly smoking and so what should we make of the fact that you're effectively asking us to ban smoking in units even though there's not a specific provision in place through this through this general language but exactly if there was a way in which they could smoke without creating this issue that wouldn't be a problem and that's why just an outright ban in the byelaws as it makes sense it's context pacific for instance you cigarettes may not creat cigarette smoke that interferes with other individuals the very purpose of the master gene the very constitution of the foundation of this community is that anything that annoys a fellow resident is prohibited and then the bylaws are created out of that and they say if it's unsafe it's prohibited if it's illegal is prohibited if it's a it may be an annoyance doesn't have to be annoyance it's prohibited and then there's a board  either side is a tenant and noise to me i can go to the association say you need to make that person stop it whatever whatever is very actively annoys doing this may not be a community that certain people want to live in but this is the community they chose to live in and that is the contract that seems sort of go ahead they chose to live in a community that doesn't prohibit smoking corrected for him in fact they even voted when given the opportunity to say let's ban smoking majority rules no we're not doing that we have a bunch of reasons why that vote which is after a while let's not get mean we can talk about  but let's say that the vote was valid if it was valid it would still be relevant in the reason why is when people move to the community they signed a contract you cannot change the terms of the contract and patrick doesn't say thou sh smokes or what is important is that there is a mechanism to change the rules if they want to allow smoking as in exceptions to the noise of the nuisance provisions an exception for the unsafe and unclean provision they can pass a by a law that says despite all of these provisions that are applicable smoking is allowed the burden is to change to change the bylaws on the members if they were saying smoking should not tobacco smoking should not be because what has it  as you pointed out with the undisputed ovens have left the problem is the reason why they have the majority is because the people who bought their units who wanted to live in a community like this were forced out because they couldn't tolerate the smoking you cannot have an environment in which individuals are forced out of their homes to change their how far how far does your or does your argument going or your your current elsewhere complained about the smells from cooking that want to give her the right to ban cooking  because she finds the cooking annoying that's i mean correct ok so what's what distinguishes that hypothetical from the difference is that cooking is necessary marijuana for instance is illegal they've not enforce the laws against marijuana that's a slam dunk it's the agreement says do not do illegal activities they allow illegal activities  is harmed by those illegal activities that is a breach of the byelaws as it comes to cigarettes there is no question that cigarettes are unsafe there's no question that individuals who are in a room where there's cigarettes being pumped in to their apartment  risk of cancer she has the right to not have that occur now if it is possible that they can smoke cigarettes in their unit without it seeping into in mass quantities by the way not just a small amount in mass quantities into the hallways and missives as you know they can do that after about  you once you decide to live in a complex that allows for smoking in the abstract that you recognize that there will be some of our smoking smells in the complex and so i would think that that's the  doesn't mention elephants it doesn't mention bazookas they did not want to enumerate all of the things because the very spirit in the text of by last show that this is has the highest restrictions possible in any communal living but the objective evidence is this the previous president of acol valley said that when he walked into that hallway and he went down in the basement simply by walking in the building and walking out his clothes reeked of cigarettes his clothes were saturated with the smell of cigarettes and the state has also shown that her furniture her towels in her bathroom that the cigarette smoke is so severe that in her bathroom which is away from the front door her sit her her everything smells of cigarettes the way that the the building is structured when someone smokes it gets distributed can you give me a timeline because as the way i read the timeline i was in march of two thousand and six that she initially raised it with the board and then they sent a letter she was raising the argument every board meeting in the closest time and record that we have evidence of could because this wasn't in dispute but in november two thousand and fifteen the board mean meeting minutes explicitly described that phyllis davis actually propose that the board adopt that this is a nuisance and a nuisance and all of the things that we're alleging now for the most part and that the bylaws committee adopted her resolution and agreed with other board members what did the defendants do they tabled it it is now two was almost a year gap racked so for five to six months from this proposal the tale that did nothing she kept going to every board meeting pleading please help please help me help they said you know i will send a lot of that says it's not a breach of the byelaws but we ask you to be kind to your neighbor and rest of my time if you go good morning kate butler appearing on behalf of the apple valley condo association and casts a bell property management company plane have purchased this condo unit in two thousand and four knowing that there was no prohibition on smoking cigarettes there was no allegation that they were smoking anything illegal there's no allegation that they had a meth lab or that they had bazooka rockets or anything else that was illegal instead her allegations priests who were all that the tenants  fifteen were smoking cigarettes the complaint in this case is also nearly tailored as to the alleged conduct occurring in unit one hundred and fifteen dollars which is again the smoking by the tenants in that unit of cigarettes she went into this knowing that they could see the others people in her condo complex could smoke the tenets and the co owners of the unit one th of you know when fifteen went into it like everyone else in the condo association knowing that there was no prohibition in place for them to is there a difference so i agree with you that there's nothing in the contract that suggests there is an absolute ban on smoking but this is a narrower argument ok so a reasonable amount of smoking smells can come out when you when you have a smoke allowed condominium but my position or her position apartment well st of all it wasn't shown what the amount of smoke was that was coming from you know one hundred and fifteen she speculates that it's coming in through the vents but she has no scientific or other evidence that it's actually coming in through the vents much less that it's coming out i mean the condo association council sought to remedy the problem to the even going to the trouble to put on particular preventive measures based on their alleged failure to enforce the by law provisions the board of directors did well because it's a nuisance so we're right back to but the board of directors did not determine that the writing was explicit rose to the level rose to the level of an annoyance or a nuisance particularly censor is no ban on smoking however the the board did take appropriate action in response to her complaints by st of all sending two thousand and sixteen letter to the which wasn't just a be kind to your neighbors letter instead it acknowledged that there had been complaints about the smoke and set forth other possibilities that the co owners could use in that unit to try to limit the amount of smoke such as and in the air purifier system smoking outside or using wet towels or some sort of vent system and then the when she continued to complain about it they then went back and a fresh air system which the plane of acknowledged to the heating and cooling some contractor was effective in other individuals testify that they had the same system they found to be seventy to eighty percent effective in eliminating the smoking smell and then in further response to her complaints that it was in a new and annoyance or nuisance the board of directors implemented the the boat in an effort to try to ban smoking altogether which was not successful what are you  condition and or the smoking activity in unit one hundred and fifteen created an annoyance or a nuisance and then it's also her burden to show that my clients failed to respond properly and fail to enforce things i guess i was struggling with are there actually any michigan cases in particular i know you said american cares that apply this in the context of condominiums or would we be i mean this we're sitting in diversity so we generally don't think that we should be making state law we usually defer to what the michigan state courts have done here there are no michigan cases or no reported michigan cases that address this issue but there are michigan cases addressing the business judgment reasonable and the that the analogy would be that a condo association is like any other business like any other board of directors would get protected by the structural correct the board of directors has the ability to work and the responsibility to manage the condo association and the business judgment rule protects it from unnecessary judicial interference as far as the day to day operations and the interpretation of the byelaws as well as the enforcement of the bylaws but it applies to nonprofit condo associations much as it does in the business setting other than the maryland case are there any case other cases around the country that apply in this case the business judgment room to a condo association or homeowners association something similar i guess we also cited a case in our brief from maine which is similarly  plighted to a community living association which i'm not sure if it was a condo association right now or home but it was a community living such as this because you have a different situation when some people are living in a community association and they choose to live there they go in do it knowing that they're going to be in a situation where you can't claim annoyance because someone is cooking spicy food or or that because someone gives you a dirty look at the mailbox is just you go into it and there's certain aspects that need to be going on and your clients knew about it and didn't do anything right it would be illegal under federal law correct and the the bylaws prohibit unlawful conduct and so that would be a separate issue in this case there was no records is this where does this question come up or what is the context is it did it come up in summary judgment or in depositions or is there anything in the record is there any record evidence on marijuana their words deposition testimony from other board members who indicated that there are they believe there was marijuana smoke in their building which was not the plane it's a building a proposed accommodation at the request of accommodation wasn't reasonable the district court seemed to handle a little bit that it also might have been necessary because it wouldn't have cure the problem are you not making an appeal any necessary argument under the fair housing act we did raise an issue on appeal as well and it ties in with that i think she had previously complained about the the cooking which leads to the conclusion that banning smoking isn't necessarily going to allow her to enjoy the equal opportunity but i do think that the strongest argument is that they requested accommodation which was to ban smoking and that was the only requested dargah meant that this one of the necessary because there i mean you took the st step of having the vet outside and then maybe there would be other narrower steps including fixing some type of air circulation that seems  less aggressive or intrusive on neighbors than than the band in their right but under your housing act claims in circuit law is clear that it's her responsibility to request a reasonable accommodation and in this case the accommodation that she requested st was to send a letter which they did in plain and dictated the letter language of the letter and nd that to ban smoking and it's not a  question whether this smoking ban is reasonable because it's clear and it's undisputed that the socio cannot ban smoking under the law and to ask what's your response are just whether she has a the it was just for the purposes of that only the subsequent to that there was an answer to the amended complaint filed where we begin indicated that there was no admission as to her disability status but about i guess their argument is kind of an equitable argument that they would of is your position that your complaint should've put them on there is evidence that it was disputed and so they should've recognized that they need to present evidence on this point rect your honor unless there's any other further questions i am the position seems to be that we need evidence that the nuisance is somehow some micrograms that has never been held in any michigan court ever there been multiple michigan supreme court cases that we held for smoke was considered a nuisance one simply because it drove people out of their homes also when it was dangerous and one case from michigan supreme court one of the earliest ones says simply because people had to close their windows to their discomfort it was a nuisance the defendants and the board the condo association supposed to enforce these laws they use their best judgment just like any other order of trustees or directors in the agreement could provide for the deference to the board it doesn't and the idea that the board can simply but the business world simply applies a matter of common law in most states right now which is the michigan supreme court case on this it says is not a pause i to non economic decisions and when it comes to a breach of contract or torturous conduct almost every court higher court in the nation has held that it does not make sense that the b j are would apply to breach of contract because it's a direct cause of action and it may be good business judgment or breach of contract but it does not get you out of liability in this racket you find any cases  rejecting across the country if you know rejecting the business treasurer in this context in this specific not now with respect to contracts but with respect to her condominium associations and in refusing to extend the business judgment rule there are not that many cases that i have found that even consider this but i because the argument i think is is facially problematic and i but i will say the one decision that they cite that is in their favor on in this context cites a higher court that actually says  association that would mean that they could functionally amend the bylaws simply by the decision of the board however the agreement itself provides a mechanism for doing that and that's two thirds it doesn't make sense and also the board they didn't meet any of the requirements of the b t r they never voted they never made a decision they never investigated it's on the speed of the never went to her apartment in michigan law is clear on this issue what about what about maybe a lesser form of the argument that yes you could have sued the co tenants directly which i know you did a good settled for the for the direct violations but maybe there should be some so they're suing the association not for the annoyance but for the enforcement language and maybe there's some discretion and interpret in that language that you know they did take actions here so to answer your question very quickly i do want to get to the fair housing act as i think this is important the answer is she should not be required to sue her co tenants that is the board's job that's why she pays them so that's why she agrees to be in a condominium association if this so she didn't have to do its job than just live in a residential community with covenants and force everything on your own they all agreed to follow these rules and have an association when it comes to the fair housing act although we believe these are judicial submissions we don't need to get there regarded is one way you can be disabled the only evidence on record is a statement from the attorney that says quote unquote plaintiff is handicapped says she's not going to count because of breast cancer she's not account because multiple chemical sensitivity just or but we do not deny that as a meets the definition of the fair housing act if that is not a statement that qualifies as regard then no one can be qualified as for but what about the response that oftentimes an admission  a preliminary injunction brief is an admission for purposes of the brief and you don't necessarily like sometimes the state could actually consent to preliminary injunction doesn't have to be a judicial mission what it is is evidence that's admissible in a court of law that they hammer if you would you would admit the preliminary injunction act or if it's a statement of their age and it's under spirited and they have an opportunity to refute it and they didn't she's regarded the reason why this is a reasonable accommodation is for one simple reason there's no question that this is a firearms or that raises the rate of assurance that cigarettes and marijuana by themselves should be banned according to the defendant's own admissions if that is true then what is she is asking simply is reasonably for them to do with they're all ready required to do law not the ceiling and this is the floor of a condominium associations are required to do by law thank you very much we will take your case under