                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Arne Moltis,
Plaintiff Below, Petitioner                                                        FILED
                                                                                 March 14, 2014
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-0920 (Kanawha County 13-C-AP-129)                               SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Aleisha Adams,
Defendant Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Arne Moltis, appearing pro se, appeals two orders of the Circuit Court of
Kanawha County.1 In the first order, entered September 4, 2013, the circuit court (a) ruled that
respondent Aleisha Adams did not owe rent for August and September of 2013 due to the
inhabitability of the property; (b) required petitioner to provide respondent with a working
refrigerator within seventy-two hours of the order; and (c) directed respondent to resume paying
rent on October 1, 2013. In the second order, entered on September 9, 2013, the circuit court
denied petitioner’s motion for Judge Bloom’s recusal as untimely.

        The Court has considered petitioner’s brief 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, petitioner’s argument, 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.

        Pursuant to a May 1, 2013 rental agreement, petitioner rented an apartment located at
232B, Tenth Avenue, South Charleston, West Virginia, to respondent for $400 per month. The
parties agreed that respondent was responsible for paying utilities.

        Subsequently, petitioner sued respondent in the Magistrate Court of Kanawha County for
wrongful occupation due to the non-payment of rent. The magistrate court ruled in petitioner’s
favor on August 16, 2013. Respondent appealed the magistrate court’s judgment on August 19,
2013, and the Circuit Court of Kanawha County considered the matter in a trial de novo. The
circuit court concluded that “the rental property was uninhabitable” after making the following
findings:

               4.     [Respondent] testified that, due to a water leak, her monthly
               water bill increased to $227. Also, the refrigerator supplied by

       1
          Petitioner also moves this Court to consider his appeal on an expedited basis. After
careful consideration, the Court grants the motion and considers the appeal forthwith.
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                [petitioner] stopped working and she lost food for her and her son.

                5.      Additionally, [respondent] testified that she began
                requesting that [petitioner] provide her with a refrigerator in June
                [of] 2013.

                6.      It is undisputed that [petitioner] did not pay the increased
                water bill and that [petitioner] has not provided [respondent] with a
                refrigerator.

Accordingly, the circuit court ruled that (a) respondent did not owe rent for August and September
of 2013 due to the inhabitability of the property; (b) required petitioner to provide respondent with
a working refrigerator within seventy-two hours of the order; and (c) directed respondent to
resume paying rent on October 1, 2013.

       On September 6, 2013, petitioner moved for Judge Bloom’s recusal alleging that the judge
had shown favoritism toward respondent in the September 4, 2013 judgment. In an order entered
September 9, 2013, the circuit court denied petitioner’s motion as untimely filed under Rule 17.01
of the West Virginia Trial Court Rules and noted that petitioner remained free to appeal its
judgment. Petitioner subsequently appealed to this Court.

I. WHETHER THE CIRCUIT COURT CORRECTLY DENIED PETITONER’S MOTION FOR
                        JUDGE BLOOM’S RECUSAL

          Petitioner asserts that Judge Bloom exhibited favoritism toward respondent in the circuit
court’s judgment. First, this Court finds that the circuit court correctly determined that petitioner
untimely filed his recusal motion. See Rule 17.01(a), W.Va.Tr.Ct.R. (A recusal motion “shall be .
. . be filed with the circuit clerk . . . at least twenty-one (21) days in advance of any trial date set in
the case.”). Second, under Rule 17.01(e)(2)(b), when the circuit court has denied an untimely
recusal motion before trial, “the issue may be addressed on appeal.” On the merits of the motion, it
is evident that petitioner alleges that Judge Bloom showed bias in respondent’s favor merely
because the judge ruled for respondent. Therefore, this Court concludes that the recusal motion
lacked merit and was correctly denied.

            II. WHETHER THE CIRCUIT COURT’S JUDGMENT CONSTITUTED

                            AN ABUSE OF DISCRETION


        We apply the standard for reviewing a judgment entered following a bench trial:

                In reviewing challenges to the findings and conclusions of the
                circuit court made after a bench trial, a two-pronged deferential
                standard of review is applied. The final order and the ultimate
                disposition are reviewed under an abuse of discretion standard, and
                the circuit court’s underlying factual findings are reviewed under a
                clearly erroneous standard. Questions of law are subject to a de novo
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               review.

Syl. Pt. 1, Public Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538
(1996).

        On appeal, petitioner argues that the circuit court disregarded the parties’ written rental
agreement. However, this Court finds that the circuit court’s judgment is consistent with the
implied warranty of habitability adopted by the Court in Teller v. McCoy, 162 W.Va. 367, 253
S.E.2d 114 (1978).2 In Syllabus Point 1 of Teller, the Court held that “[t]here is, in a written or oral
lease of residential premises, an implied warranty that the landlord shall 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.” 162 W.Va. at 367, 253 S.E.2d at
116 (Emphasis added.). In Syllabus Point 2, the Court further held, in pertinent part, that “[t]he
tenants [sic] duty to pay rent is dependent upon the landlord’s fulfillment of the implied warranty
of habitability.” Id.

        In the case at bar, the circuit court found (1) a water leak caused an unexpected raise in
respondent’s water bill; and (2) the lack of a working refrigerator resulted in respondent losing the
food she had for herself and her son. Therefore, this Court concludes that the circuit court did not
abuse its discretion in finding the apartment uninhabitable and in (a) ruling that respondent did not
owe rent for August and September of 2013 due to the inhabitability of the property; (b) requiring
petitioner to provide respondent with a working refrigerator within seventy-two hours of the order;
and (c) directing respondent to resume paying rent on October 1, 2013.3

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.
ISSUED: March 14, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

       2
         See also W.Va. Code § 37-6-30 (a landlord shall maintain rental premises in a fit and
habitable condition).
       3
         Petitioner asserts that while he complied with the circuit court’s September 4, 2013,
judgment and provided respondent with a working refrigerator, respondent did not resume paying
rent on October 1, 2013. However, as respondent’s alleged non-compliance occurred after the
September 4, 2013, judgment and after the September 9, 2013, order denying petitioner’s recusal
motion, that issue is not currently before this Court and the Court does not address it.
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