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Taccino v. Forest City Residential Management, Inc.

Supreme Court of West Virginia

June 7, 2019

Michael E. Taccino, Sr., Plaintiff Below, Petitioner
v.
Forest City Residential Management, Inc., and Rose Community Management, LLC, Defendants Below, Respondents

          Mineral County 17-C-31

          MEMORANDUM DECISION

         Petitioner Michael E. Taccino, Sr., pro se, appeals the September 29, 2017, order of the Circuit Court of Mineral County awarding judgment as a matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure following the close of petitioner's case-in-chief. Respondents Forest City Residential Management, Inc., and Rose Community Management, LLC ("respondents"), by counsel Charles W. Peoples, Jr., filed a summary response.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner leased an apartment from respondents that was subsidized through the United States Department of Housing and Urban Development. According to the testimony of petitioner's sole witness at trial-respondent's property manager-petitioner lived in a building that was nonsmoking in the common areas, such as, lobbies.[1] Respondent's property manager testified that "[s]moking is allowed in apartments."

         Petitioner, who suffers from asthma, complained to the property manager that cigarette smoke was drifting into his apartment. Respondent's property manager testified that she investigated petitioner's complaints and "did not determine smoke smell inside [petitioner's apartment] or the hallways." Petitioner followed up that answer by asking for clarification as to whether there was cigarette smoke in the hallways. The property manager testified that "there could possibly be drifting," but answered "no" as to whether she found smoke in the hallways. Finally, petitioner inquired about a specific incident on March 17, 2017, when petitioner asked the property manager to come to his apartment. The property manager testified that she could not recall whether she told petitioner that she could smell cigarette smoke in the hallway on that occasion.

         Nonetheless, petitioner submitted an application to be provided a reasonable accommodation under the Federal Fair Housing Act, 42 U.S.C. § 3601-3631 ("FFHA"), with medical documentation showing his asthmatic condition. Respondent's property manager testified that petitioner's application was approved and that respondents offered to relocate petitioner to a different apartment as a reasonable accommodation. However, the property manager further testified that respondents could not guarantee that petitioner would not be exposed to cigarette smoke given that other tenants were permitted to smoke in their apartments.

         Disagreeing that relocation to a different apartment constituted a reasonable accommodation, petitioner filed suit against respondents on February 17, 2017, [2] alleging a violation of both the FFHA and West Virginia Code § 37-6-30, which codified the implied warranty of habitability.[3] As noted above, respondent's property manager was petitioner's only witness at the September 20, 2017, jury trial. Following the property manager's testimony, the circuit court inquired twice as to whether petitioner was resting his case. Petitioner responded affirmatively both times. Thereafter, respondents sought permission to make a motion. Following the jury's removal to the jury room, respondents moved for judgment as a matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure. After giving petitioner an opportunity to argue against respondents' motion, the circuit court awarded respondents judgment as a matter of law. In an order entered September 29, 2017, the circuit court found:

The [c]ourt, having considered the [m]otion and argument in support thereof by [respondents'] counsel, considering the evidence offered by [petitioner] in a light most favorable to him and finding that the evidence adduced failed to establish a prima facie right to recovery and was not legally sufficient as a basis for a reasonable jury to find for [petitioner] on any of the issues presented, granted [respondents'] [m]otion for [j]udgment as a [m]atter of [l]aw and discharged the jury.

         Petitioner now appeals the circuit court's September 29, 2017, order awarding respondents judgment as a matter of law pursuant to Rule 50(a). In syllabus point one of Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 672 S.E.2d 345 (2008), we held, in pertinent part, that "[t]he appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the . . . Rules of Civil Procedure is de novo." (Internal quotations and citations omitted.).

         On appeal, [4] petitioner first argues that the circuit court failed to reasonably accommodate him as a pro se litigant. In Blair v. Maynard, 174 W.Va. 247, 253, 324 S.E.2d 391, 396 (1984), we found that "[c]ases should be decided on the merits, and to that end, justice is served by reasonably accommodating all parties, whether represented by counsel or not." Here, respondents' property manager was subpoenaed only as a defense witness. However, the circuit court directed respondents' counsel to "get in touch with [respondents' property manager and] advise her to come" to court because petitioner wanted to question her in his case-in-chief. After the property manager's testimony, [5] the circuit court inquired twice as to whether petitioner was resting his case. Petitioner responded affirmatively both times. Following respondent's motion for judgment as a matter of law, the circuit court allowed petitioner an opportunity to argue against the motion. Therefore, based on our review of the record, we conclude that this argument lacks merit as the circuit court reasonably accommodated petitioner as a pro se litigant.

         Petitioner next argues that the circuit court violated his right to a jury trial by granting respondents' Rule 50(a) motion for judgment as a matter of law.[6] Various motions for judgment as a matter of law exist under the Rules of Civil Procedure, and in syllabus point seven of Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961), we held that the granting of such a motion "does not infringe the constitutional right of a party to a trial by jury[.]"[7] In Petros, we explained that the motion "is not a substitute for a trial or a trial either by a jury or by the court of an issue of fact, but is a determination that, as a matter of law, there is no issue of fact to be tried." 146 W.Va. at 635, 122 S.E.2d at 186. Rule 50(a)(1) provides, in pertinent part, that judgment as a matter of law may be granted during trial if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Here, the circuit court granted respondents' motion for judgment as a matter of law based on a determination that petitioner's case-in-chief failed to establish a legally sufficient basis "for a reasonable jury to find for [petitioner] on any of the issues presented." Therefore, based on our review of the record on appeal, we conclude that this argument lacks merit as the circuit court did not violate petitioner's right to a jury trial, but found that there was no issue of fact for the jury to determine.

         Finally, petitioner argues that the circuit court erred in awarding respondents judgment as a matter of law following the close of his case-in-chief. In syllabus point one of Estep, we held, in pertinent part:

"'[T]his court, after considering the evidence in the light most favorable to the non[-]movant party, will sustain the granting of a [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a [judgment as a matter of law] will be reversed.' Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996)." Syl. pt. 5, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002).

223 W.Va. at 212, 672 S.E.2d at 348. Petitioner argues that respondents' property manager's testimony established his claims that respondents violated both West Virginia Code ยง 37-6-30, which codified the implied warranty of habitability, and the FFHA. Based on our review of the trial transcript, we disagree. We find that the property manager provided no ...


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