                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Michael E. Taccino, Sr.,                                                             FILED
Plaintiff Below, Petitioner                                                       June 7, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 17-0949 (Mineral County 17-C-31)                                            OF WEST VIRGINIA


Forest City Residential Management, Inc.,
and Rose Community Management, LLC,
Defendants Below, Respondents


                               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 non-
smoking 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

       1
        Petitioner states that, by the time of the September 20, 2017, trial, he was no longer leasing
an apartment from respondents.
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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

       2
        Petitioner initially sued Respondent Forest City Residential Management, Inc. and then
filed an amended complaint to add Respondent Rose Community Management, LLC as a
defendant. At trial, respondents’ property manager testified that the first company was “taken
over” by the second company.
       3
           See Reed v. Phillips, 192 W.Va. 392, 395 n.5, 452 S.E.2d 708, 711 n.5 (1994).

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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.

        4
         Petitioner refers to numerous issues, but raises only three as assignments of error.
Respondents argue that petitioner raises issues that are irrelevant as to whether the circuit court
erred in granting their Rule 50(a) motion and are not adequately supported with argument and
citations to the record. Based on a review of petitioner’s brief and the record, we agree with
respondents and decline to consider issues that petitioner only mentions in passing and/or does not
support with relevant documents in his appendix. See State v. LaRock, 196 W.Va. 294, 302, 470
S.E.2d 613, 621 (1996) (stating that “[a]lthough we liberally construe briefs in determining issues
presented for review, issues which are not raised, and those mentioned only in passing but are not
supported with pertinent authority, are not considered on appeal”); State v. Honaker, 193 W.Va.
51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (stating that we “take as non[-]existing all facts that do
not appear in the [appendix] record and will ignore those issues where the missing record is needed
to give factual support to the claim”). Therefore, we address only those three issues identified by
petitioner as assignments of error: (1) whether the circuit court failed to reasonably accommodate
petitioner as a pro se litigant; (2) whether the circuit court violated petitioner’s right to a jury trial
by granting respondents’ Rule 50(a) motion for judgment as a matter of law; and (3) whether the
circuit court erred in awarding respondents judgment as a matter of law following the close of
petitioner’s evidence.
        5
         During the property manager’s testimony, petitioner questioned her regarding two exhibits
marked for identification. As respondents note, petitioner never asked the circuit court to admit
the exhibits into evidence. In Blair, we cautioned that “the court must not overlook the rules to the
prejudice of any party” and, “ultimately, the pro se litigant must bear the responsibility and accept
the consequences of any mistakes and errors.” 174 W.Va. at 253, 324 S.E.2d at 396; see W.Va.
Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387,
394, 599 S.E.2d 810, 817 (2004) (finding that pro se litigant waived right to jury trial by (1) failing
to participate in a scheduling conference; and (2) failing to express a desire for a jury trial at a
pretrial conference and during the bench trial).

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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 § 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 testimony that would


        6
          Article III, section 3 of the West Virginia Constitution guarantees the right to a jury trial
in civil proceedings.
        7
        We reiterated our holding from syllabus point seven of Petros in syllabus point one of
Jackson v. Putnam County Board of Education, 221 W.Va. 170, 653 S.E.2d 632 (2007).


                                                     4
allow the jury to find that West Virginia Code § 37-6-30 was violated.8

       Regarding petitioner’s FFHA claim, “only accommodations that are ‘reasonable’ are

       8
           West Virginia Code § 37-6-30(a) provides:

                 With respect to residential property:

                 (a) A landlord shall:

                 (1) At the commencement of a tenancy, deliver the dwelling unit
                 and surrounding premises in a fit and habitable condition, and shall
                 thereafter maintain the leased property in such condition; and

                 (2) Maintain the leased property in a condition that meets
                 requirements of applicable health, safety, fire and housing codes,
                 unless the failure to meet those requirements is the fault of the
                 tenant, a member of his family or other person on the premises with
                 his consent; and

                 (3) In multiple housing units, keep clean, safe and in repair all
                 common areas of the premises remaining under his control that are
                 maintained for the use and benefit of his tenants; and

                 (4) Make all repairs necessary to keep the premises in a fit and
                 habitable condition, unless said repairs were necessitated primarily
                 by a lack of reasonable care by the tenant, a member of his family
                 or other person on the premises with his consent; and

                 (5) Maintain in good and safe working order and condition all
                 electrical, plumbing, sanitary, heating, ventilating, air-conditioning
                 and other facilities and appliances, including elevators, supplied or
                 required to be supplied by him by written or oral agreement or by
                 law; and

                 (6) In multiple housing units, provide and maintain appropriate
                 conveniences for the removal of ashes, garbage, rubbish and other
                 waste incidental to the occupancy of the dwelling unit; and

                 (7) With respect to dwelling units supplied by direct public utility
                 connections, supply running water and reasonable amounts of hot
                 water at all times, and reasonable heat between the first day of
                 October and the last day of April, except where the dwelling unit is
                 so constructed that running water, heat or hot water is generated by
                 an installation within the exclusive control of the tenant.
                                                   5
required.” In Re: Kenna Homes Cooperative Corp., 210 W.Va. 380, 387, 557 S.E.2d 787, 794
(2001). Here, petitioner wanted a guarantee that he would never be exposed to cigarette smoke.
However, respondents’ property manager testified that, while respondents offered to relocate
petitioner to a different apartment, they could not guarantee that he would not be exposed to
cigarette smoke. The property manager explained that petitioner lived in a building where tenants
were permitted to smoke inside their apartments.

        Petitioner argues that, in certain instances, the FFHA requires landlords to modify their
policies. See Kenna Homes, 210 W.Va. at 386, 557 S.E.2d at 793 (citing 42 U.S.C. §
3604(f)(3)(B)). However, in Kenna Homes, we further found that “[t]he requirement of reasonable
accommodation does not entail an obligation to do everything humanly possible to accommodate
a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.”
Id. at 387, 557 S.E.2d at 794 (Internal quotations and citations omitted.). While the cost to
respondents would involve upsetting the settled expectations of the other tenants, the property
manager’s testimony failed to show that a change in policy would benefit petitioner. The property
manager testified that she “did not determine smoke smell inside [petitioner’s apartment] or the
hallways” during her investigation of his complaints. Despite repeated questions from petitioner
seeking clarification, the property manager never testified that she detected cigarette smoke in the
hallways. Thus, according to respondents’ property manager—who was petitioner’s only
witness—while respondents were willing to relocate petitioner to another apartment, there was no
reason to change the policy that allowed other tenants to smoke inside their apartments when the
building’s common areas were already maintained as smoke-free zones. Therefore, we concur with
the circuit court’s finding that petitioner’s case-in-chief failed to produce sufficient evidence to
allow his FFHA claim to go to the jury. Accordingly, we conclude that the circuit court did not err
in granting respondents’ Rule 50(a) motion for judgment as a matter of law.

        For the foregoing reasons, we affirm the circuit court’s September 27, 2017, order
awarding respondents judgment as a matter of law.

                                                                                            Affirmed.


ISSUED: June 7, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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