In this
proceeding, the majority opinion has concluded that res judicata did not apply
in this case, and, therefore, the circuit court erred by granting the defendant
summary judgment on that ground. The flaw in the majority opinion is that it
disregarded the circuit court's alternative basis for granting summary judgment.
The majority opinion did so by stating that the circuit court could not give
an alternative basis for granting summary judgment. For the reasons set out below,
I respectfully dissent.
In
this proceeding, the circuit court found that summary judgment was appropriate
because res judicata applied. Alternatively, the circuit court concluded that
summary judgment was appropriate because the defendant had provided the plaintiff
with an accommodation. The majority opinion concluded that res judicata did
not apply. However, rather than examining the accommodation alternative, the
majority opinion stated
that “[o]nce the claim was determined as res judicata, no part of the
claim remained before the court for further discussion or determination.”
Prior
to the decision in this case, the opinions of this Court were quite clear in
observing that summary judgment may be granted on alternative grounds. See Mrotek
v. Coal River Canoe Livery, Ltd., 214 W. Va. 490, 491, 590 S.E.2d 683,
684 (2003) (“The circuit court granted summary judgment on two alternative
grounds. . . . Upon review of the briefs and record in this case,
we affirm.”); Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va.
135, 148-150, 506 S.E.2d 578, 591-593 (1998) (“In its summary judgment order,
the circuit court listed alternative reasons for granting CAMC's summary judgment. . . .
[T]he circuit court's alternative grounds for granting summary judgment on the
tortious interference claim was correct.”); Tolliver v. Kroger Co.,
201 W. Va. 509, 523, 498 S.E.2d 702, 716 (1997) (“We . . .
affirm the circuit court's alternative ground for granting partial summary judgment
on the claim of assault and battery.”).
Additionally,
federal courts have recognized that summary judgment may be granted on alternative
grounds. See also Exxon Corp. v. Hunt, 475 U.S. 355, 361, 106 S. Ct.
1103, 1109, 89 L. Ed. 2d 364 (1986) (“The Tax Court entered summary
judgment for New Jersey on two alternative grounds.”); United States
ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321, 1323
(D.C. Cir. 2005) (“The District Court granted summary
judgment for Odebrecht, relying on two alternative grounds.”); Church
of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 202 (2nd Cir.
2004) (“The District Court granted plaintiffs' motion for summary judgment
. . . on four independent and alternative First Amendment grounds.”); Porter
v. Ascension Parish School Bd., 393 F.3d 608, 613 (5th Cir.
2004) (“In the present case, the district court granted the defendants'
motion for summary judgment on grounds that plaintiffs had failed to raise
a material fact issue with respect to any of their constitutional claims, and
on the alternative ground that defendant Braud was entitled to summary judgment
based on qualified immunity.”); Banks v. City of Whitehall, 344
F.3d 550, 551-552 (6th Cir. 2003) (“The district court granted
the defendants' motion for summary judgment on several alternative grounds.”); McKay
v. United States Dept. of Transp., 340 F.3d 695, 698 (8th Cir.
2003) (“The district court granted summary judgment for the DOT on two
alternative grounds.”); Konop v. Hawaiian Airlines, Inc., 302 F.3d
868, 881 (9th Cir. 2002) (“The district court dismissed the[]
claims on the alternative grounds that it lacked jurisdiction over the . . .
claims, and that [plaintiff] failed to support them with evidence sufficient
to withstand summary judgment.”).
The majority
opinion now proclaims that summary judgment cannot be based on alternative grounds.
Further, the majority opinion held that an alternative ground for summary judgment
is mere “obiter dicta.” As I will show, the majority opinion improperly
reached this conclusion, because the circuit court's alternative ground properly
disposed of
this case.
Prior
to the decision by the majority, our law was clear in recognizing that “Rule
56(c) gives trial courts the discretion to grant summary judgment when a moving
party has shown that no genuine issue of material fact is in dispute and the
moving party is entitled to judgment as a matter of law.” Franklin D.
Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook
on West Virginia Rules of Civil Procedure § 56(c), at 932-933 (2000).
In the instant case the trial court found, as an alternative basis for granting
summary judgment, (See
footnote 1) that the defendant had established that no genuine
issue of material fact was in dispute and the defendant was entitled to summary
judgment. I will illustrate the correctness of this conclusion by citing the
findings made by the circuit court in its well reasoned order: (See
footnote 2)
C. Esquire's Offer of Accommodation
16.
Esquire also has presented evidence that it has offered to allow the Blacks to
keep the fence so long as it is medically necessary as a reasonable accommodation
for Ms. Blacks' medical condition and has met any requirements of the West Virginia
Fair Housing Act. In support of its argument, Esquire asserts that it offered
a reasonable accommodation in order to assist the Blacks.
17.
To establish a prima facie case under the Federal Fair Housing Act (“FFHA”)
or the West Virginia Fair Housing Act (“WVFHA”), plaintiff is required
to show that:
“(1)
[plaintiff] suffers from a handicap as defined in 42 U.S.C. § 3602(h); (2)
defendants knew of [plaintiff's] handicap or should reasonably be expected to
know of it; (3) accommodations of the handicap 'may be necessary' to afford [plaintiff]
an equal opportunity to use and enjoy the dwelling; and (4) defendants refused
to make such accommodation.”
In re Kenna Homes Coop. Corp.,
557 S.E.2d 787, 794 (W. Va. 2001). The Court noted that both Acts only require
an accommodation if a person suffers from a “handicap.” Id. “Second,
only accommodations that are reasonable are required.” Id. Further,
the reasonable accommodation requirement “does not entail an obligation
to do everything humanly possible to accommodate a disabled person . . .” Id.
18.
The record has demonstrated that Esquire offered to allow the fence to stay in
place as long as it is required as a medical necessity. Esquire has taken no
action to enforce Judge Cummings' Permanent Injunction Order and has no plans
to do so as long as the fence is a medical necessity.
19.
The WVHRC and the Blacks, despite the grant of the reasonable accommodation,
pursued the instant action because Esquire will not grant a “permanent exemption” to
the restrictive covenant at issue, regardless of handicap or disability and regardless
of occupancy of the property. However, a permanent exemption, running with the
land, simply is not required or even contemplated under the Fair Housing Act.
Rather, a proposed accommodation must be based on “handicap”, “reasonableness” and “necessity.” In
re Kenna Homes Coop. Corp., 557 S.E.2d at 794. W. Va. Code § 5-11A-5(f)(3)
dictates that reasonable accommodation only be required while the handicapped
person occupies the premises. It follows that if the person no longer uses the
dwelling, i.e., resides there, the need for the accommodation has ceased.
Moreover, such an accommodation only is required if the individual is handicapped.
Plaintiffs have claimed to be entitled to an exemption even if Ms. Black resides
in the home but no longer qualifies as handicapped under the statute. However,
both FF[H]A and the WVFHA “only require[] an accommodation for persons
with handicaps if the accommodation is (1) reasonable and (2) necessary (3)
to afford handicapped persons equal
opportunity to use and enjoy housing.” In re Kenna Homes, 557 S.E.2d
at 794 citing Bryant Woods Inn v. Howard County, Maryland, 124 F.3d
597, 603 (4th Cir. 1997) (emphasis added). If Ms. Black no longer
qualifies as a handicapped person under the statute, the need for the accommodation
has ceased to exist and no longer would be necessary.
20.
Plaintiffs also argue that Esquire's proposed accommodation is not reasonable
due in part to the fact that should Ms. Black's medical condition resolve itself,
the subsequent removal of the fence under Esquire's offer of accommodation would
not be cost efficient. Nevertheless, the law places the burden for expenses related
to reasonable accommodation upon the party requesting it. Even assuming plaintiffs'
argument that the Blacks will be faced with significant costs and liabilities
should Ms. Black return to health or move from the home is true, the Court finds
that this does not change the reasonableness of Esquire's accommodation.
21.
The anti-discrimination statute expressly states that unlawful discrimination
consists of:
“a
refusal to permit, at the expense of the handicapped person, the reasonable modifications
of existing premises occupied or to be occupied by such person if such modifications
may be necessary to afford such full enjoyment of the premises . . .”
The statute expressly has stated
that the costs associated with reasonable modifications must be borne by the
handicapped person. The Blacks undertook their unilateral decision to construct
the pool and the fence, and in doing so, assumed the responsibility for all costs
associated with the making of such modifications - site preparation, installation,
maintenance, and even possible removal. Plaintiffs seek to differentiate between
costs of installation and costs of removal. No such distinction has been set
forth in the statute.
22.
Moreover, the expenses of modification must include the costs associated with
removing an accommodation once it becomes unnecessary. To hold otherwise would
allow the Blacks to enjoy a right to which none of their resident neighbors enjoy,
even though no disabled individual resides in the house.
23.
If Ms. Blacks' disability continues, Esquire has offered to allow the allegedly
needed fence to remain. In such case, the Blacks will not be faced with the potential
costs as long as Ms. Black lives in the home.
24.
Moreover, this Court cannot ignore that if Ms. Black is not disabled, she is
not entitled to the protections of the WVFHA. If Ms. Black is not disabled, the
Blacks are landowners on equal footing with every other landowner in the subdivision.
The Blacks cannot shift to Esquire, and the other landowners, the costs associated
with bringing their property into compliance with a judicially sanctioned restrictive
covenant in the event that a disabled person no longer resides in the home.
25.
After considering all of the respective facts and arguments, the Court has determined
that while plaintiffs' position is arguable, it does not address the fact that
a reasonable accommodation has been offered yet the Blacks have chosen to refuse
it in order to seek a permanent exemption or some agreement as to the cost of
removing.
D. Conclusion
. . .
.
28.
The Court further finds that Esquire has offered plaintiffs[] a reasonable accommodation
as a matter of law.
The above
findings by the circuit court were deemed to be merely orbiter dicta by the majority
opinion. Clearly, these findings were not orbiter dicta. The defendant moved
for summary judgment on two theories: (1) res judicata and (2) that an offer
had been made to provide plaintiffs with a reasonable accommodation. Under the
majority opinion, the circuit court had no authority to consider both theories,
it could only consider one. The majority's reasoning simply is wrong and in direct
conflict with Rule 8(e)(2) of the West Virginia Rules of Civil Procedure. It
has correctly been observed that:
Rule 8(e)(2) permits alternative, inconsistent and mixed pleadings. Variance in pleadings is encouraged to simplify the statement of claims and defenses, so as to bring about a complete resolution of conflict in the trial of a single civil action.
Cleckley, Davis & Palmer, Litigation Handbook § 8(e)(20), at
201-202.
Rule
8(e)(2) allows parties to plead alternative liability theories and defenses.
Under the majority's ruling in this case, a circuit court may consider only one
theory in making a ruling on a dispositive motion. With such reasoning, I strongly
disagree. (See footnote 3)
Based
upon the foregoing, I dissent.