Sep 6, 2018
BAY CITY, MI — The owner of a downtown Bay City bar targeted in a lawsuit by its upstairs neighbors for being too loud has filed a countersuit, alleging the condo owners are perpetuating a campaign of harassment against them.
Representing Edmonds Properties LLC and Harless + Hugh Public House, attorney Matthew B. Hewitt on Monday, Nov. 27, filed the countersuit against the Shearer Building Condominium Owner’s Association in Bay County Circuit Court. The Public House is located on the first floor of the Shearer Building at 811 Adams St. and opened in June.
There are two counts in the counterclaim — breach of fiduciary responsibility and nuisance.
Regarding the former, the counterclaim states the association has a fiduciary responsibility to Public House owner Lyndsay Edmonds by virtue of her membership in the association.
“Plaintiffs failed to consider or to take action that could have resolved or mitigated damages they’re alleging, such as soundproofing, and instead acted to try depriving Edmonds of her property and rights,” the counterclaim reads. “Plaintiffs breached their fiduciary duty to Defendant when members of the Board … initiated and enforced punitive actions against the defendant and in favor of themselves. This constitutes a conflict of interest and/or self dealing.”
The association also violated its duties by spending money, some of which was paid by Edmonds, to hire counsel to sue her, the counterclaim alleges.
Pertaining to the nuisance count, the counterclaim asserts the association has harassed Edmonds by repeatedly calling police and government officials “to file trivial and potentially frivolous complaints” and issuing numerous fines against her. This has resulted in “loss of business, curtailment and impairment of use and enjoyment of (the) property, increased costs of operation, aggravation, and inconvenience.”
The counterclaim is asking the court to award more than $25,000 in damages, as well as interest and attorney fees.
The association is represented by attorneys Brian S. Makaric, Jamie Hecht Nisidis, and Kosta D. Povich of Saginaw Township firm Braun Kendrick Finkbeiner. A message has been left with Makaric seeking comment. The Bay City Times-MLive has also left a message with association President Jim Kruzynski seeking comment.
The association filed its lawsuit against Edmonds Properties LLC on Nov. 3. In it, the association contends excessive noise regularly emanates from the Public House, in violation of the group’s bylaws. The association has filed at least 13 complaints against Edmonds since July 22, 11 of which have been authored by Chris Duncan, who resides directly above the bar.
The 13 complaints total $2,650 in fines, though Edmonds has not paid any of them. In the response, Hewitt denies his client owes the fines, saying there is no appeal process for her to argue her side.
“The fines have been applied in a clearly discriminatory, unfair, and biased manner against the defendant, and as such are unenforceable,” Hewitt’s response reads.
Police have responded to the bar on several occasions due to noise complaints, but have not issued any citations.
The association’s suit also alleges Edmonds failed to complete work on ventilation pipes as required, resulting in noxious odors entering the residents’ homes.
The suit states it is asking the court to permanently prevent “Edmonds from continuing current operations in any manner inconsistent with the bylaws” and to issue a judgment that her activities are prohibited by the bylaws. The group is also asking the court to order Edmonds to pay her outstanding fines and their legal costs and attorney fees.
“Our goal is not to put her out of business,” Kruzynski, the association president, told MLive on Nov. 13. “Our goal is to have her follow the bylaws. When you live in a condominium, you need to abide by the bylaws, period.”
Edmonds bought the property in February 2014 and announced her plan to open a bar and restaurant there the same month. In the countersuit, Hewitt argued there were several public meetings regarding the project, including public hearings concerning the business’ liquor license.
“At no time prior to the opening of the business was there any formal objection expressed,” Hewitt said.
Since the initial suit was filed, Edmonds has addressed the ventilation issues, with an inspection set for Wednesday, Nov. 29, Hewitt told The Bay City Times-MLive. Hewitt added that Edmonds plans to proceed with adding insulation and sound proofing to her unit’s roof.