McClure Management, LLC and Cindy Kay Adams v. Erik Taylor and James Turner

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term
_______________ FILED
October 16, 2020
released at 3:00 p.m.
No. 18-1104 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

McCLURE MANAGEMENT, LLC and
CINDY KAY ADAMS,
Petitioners

v.

ERIK TAYLOR and
JAMES TURNER,
Respondents
____________________________________________________________

Appeal from the Circuit Court of Ohio County
The Honorable Jason A. Cuomo, Judge
Civil Action No. 12-C-287

AFFIRMED
____________________________________________________________

Submitted: September 23, 2020
Filed: October 16, 2020

David L. Delk, Esq. Patrick S. Cassidy, Esq.
Grove, Holmstrand & Delk, PLLC Timothy F. Cogan, Esq.
Wheeling, West Virginia Irvin N. Shapell, Esq.
Counsel for Petitioners Cassidy, Cogan, Shapell &
Voegelin, LC
Wheeling, West Virginia
Counsel for Respondents

CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “The appellate standard of review for an order granting or denying a

renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the

West Virginia Rules of Civil Procedure [1998] is de novo.” Syl. Pt. 1, Fredeking v. Tyler,

224 W. Va. 1, 680 S.E.2d 16 (2009).

2. “When this Court reviews a trial court’s order granting or denying a

renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West

Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts

to determine how it would have ruled on the evidence presented. Instead, its task is to

determine whether the evidence was such that a reasonable trier of fact might have reached

the decision below. Thus, when considering a ruling on a renewed motion for judgment as

a matter of law after trial, the evidence must be viewed in the light most favorable to the

nonmoving party.” Syl. Pt. 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).

3. “In order to make a prima facie case of discrimination in a place of

public accommodation, the complainant must prove the following elements: (a) that the

complainant is a member of a protected class; (b) that the complainant attempted to avail

himself of the ‘accommodations, advantages, privileges or services’ of a place of public

accommodation; and (c) that the ‘accommodations, advantages, privileges or services’

were withheld, denied or refused to the complainant.” Syl. Pt. 1, K-Mart Corp. v. Human

Rights Comm’n, 181 W. Va. 473, 383 S.E.2d 277 (1989).
 4. “Whether a plaintiff will be allowed to introduce further evidence

after the evidence in behalf of a defendant is concluded is ordinarily within the discretion

of the trial court, and the exercise of such discretion will rarely constitute ground for

reversal.” Syl. Pt. 10, Edmiston v. Wilson, 146 W. Va. 511, 120 S.E.2d 491 (1961).

5. “Under Rule 611(a) of the West Virginia Rules of Evidence, a trial

court has broad discretion in permitting or excluding the admission of rebuttal testimony,

and this Court will not disturb the ruling of a trial court on the admissibility of rebuttal

evidence unless there has been an abuse of discretion.” Syl. Pt. 2, Belcher v. Charleston

Area Med. Ctr., 188 W. Va. 105, 422 S.E.2d 827 (1992).

6. “Courts must not set aside jury verdicts as excessive unless they are

monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and

manifestly show jury passion, partiality, prejudice or corruption.” Syl. Pt. 1, Addair v.

Majestic Petroleum Co., Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977).
ARMSTEAD, Chief Justice:

Respondents, Erik Taylor (“Mr. Taylor”) and James Turner (“Mr. Turner”),

brought a discrimination lawsuit under the West Virginia Human Rights Act

(“WVHRA”), 1 against Petitioners, McClure Management, LLC (“McClure Hotel” or

“hotel”), and Cindy Kay Adams (“Petitioner Adams”). The jury found in favor of

Respondents and awarded each of them $475,000.00. Following the trial, Petitioners filed

a motion for judgment as a matter of law, or, alternatively, a new trial. The circuit court

denied this motion by order entered on October 25, 2018.

On appeal, Petitioners argue that: 1) Respondents “failed to present evidence

that the Petitioners violated the [WVHRA] and denied the Respondents accommodations

of the hotel in any way;” 2) the circuit court erred by allowing Respondents to call a rebuttal

witness to testify about comments Petitioner Adams made; and 3) the jury’s verdict was

excessive. After review, we find no error, and therefore affirm the circuit court’s October

25, 2018, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Taylor and Mr. Turner are African American men who were employees

of Price Gregory International, Inc. (“Price Gregory”) when the relevant events in this

matter occurred. Price Gregory is a company involved in the natural gas industry. Mr.

1
See W. Va. Code § 5-11-1 et seq. (1967).

1
Taylor lives in California. Mr. Turner lives in Mississippi. Both men came to West

Virginia to work as “pipeliners” at a gas production site operated by Price Gregory.

The instant matter arises out of their attempt to seek long-term apartment

rooms at the McClure Hotel in Wheeling, West Virginia. Respondents filed their complaint

against the McClure Hotel and an employee of the hotel, Petitioner Adams, alleging that

their “actions in refusing, and/or withholding from [Respondents] the accommodations,

advantages, facilities, privileges or services of their place of public accommodation

constitutes unlawful discriminatory practices under West Virginia Code [§] 5-11-

9(6)(A).” 2

The jury trial began on July 23, 2018. Respondents’ first witness was Mr.

Taylor. He testified that he was working on a pipeline project in Tennessee for Price

Gregory prior to coming to West Virginia. After finding out that his next project would be

in West Virginia, Mr. Taylor stated that “I usually ask where’s everybody staying at. And

the majority of the people said we’re staying at the McClure [Hotel].” Mr. Taylor

proceeded to call the McClure Hotel and asked if they had long-term apartment rooms

available. Petitioner Adams was the hotel employee who answered this call. Mr. Taylor

testified that she told him that long-term apartment rooms were available. However, after

arriving at the McClure Hotel in person and speaking with Petitioner Adams, Mr. Taylor

2
Respondents also sued for defamation. That claim was not submitted to the jury,
and has no bearing on this appeal.

2
stated that Petitioner Adams told him that there was a “waiting list” for the long-term

apartment rooms, but he could stay in a “nightly room,” which the hotel referred to as a

“sleeper room.” The “sleeper rooms” are more expensive on a nightly basis than the long-

term apartment rooms.

Mr. Taylor testified that he observed white coworkers who were hired after

him, and who arrived at the hotel after him, being provided with long-term apartment

rooms while he remained in a “sleeper room.” He explained that he knew who was “hired

in what order pretty much from who’s on site at the safety meetings and who’s not there.”

Mr. Taylor approached Petitioner Adams and asked why these coworkers who were hired

after him, and arrived at the hotel after him, were being provided with long-term apartment

rooms when she had informed him that none were available. According to Mr. Taylor,

Petitioner Adams told him that these coworkers were ahead of him on the “waiting list.”

Mr. Taylor testified that this could not have been the case because the coworkers had not

yet been hired by Price Gregory when he arrived at the hotel. Regarding these coworkers,

Mr. Taylor was asked “did you actually see that they had long-term apartments?” He

replied: “Yes. Physically I visually viewed them. Because of the parking, there’s only one

place to park there, so we parked in the same area[.]”

After his conversation with Petitioner Adams, Mr. Taylor spoke with the

hotel’s general manager, Cindy Johnson. He told her that “there’s coworkers at the site

that got hired after me that are getting rooms before me, so what’s the problem, I’ve been

here before them.” According to Mr. Taylor, Ms. Johnson told him that the hotel did not

3
have a “waiting list” and referred him back to Petitioner Adams. Mr. Taylor proceeded to

speak with Petitioner Adams again, and she repeated her claim that there was a “waiting

list.” However, shortly after his conversation with the hotel’s general manager, Mr. Taylor

was provided with a long-term apartment room. He had been at the hotel for approximately

two weeks before being provided with a long-term apartment room.

Next, Mr. Taylor described an interaction he had with Petitioner Adams

regarding his hotel bill. Mr. Taylor acknowledged that, on one occasion, he paid the

monthly apartment rent three days beyond the five-day grace period provided for in the

apartment rental agreement; however, the hotel’s policy provided that eviction would not

occur unless a rental payment was ten days late. On the day he made this rental payment,

December 8, 2011, he paid in cash and stated that the hotel made a photocopy of the money

he handed them. Further, Petitioner Adams called him to inform him that, although he had

paid his rent, he had a parking fee that remained outstanding. Mr. Taylor explained to her

that he intended to “go to the bank and . . . take care of it” after work. According to Mr.

Taylor, Petitioner Adams responded, “I’ve had nothing but problems from you people.”

Mr. Taylor asked Petitioner Adams what she meant by “you people.” Although she did

not directly respond, Mr. Taylor testified that he “knew what it meant because [he had]

heard it so many times in [his] life.”

Later that day, Mr. Taylor discovered that Petitioner Adams had called Price

Gregory and spoken to his office manager. Mr. Taylor asked Petitioner Adams whether

she made disparaging remarks about him to his office manager, but Petitioner Adams

4
“didn’t have any response to that. She just sat there and looked at [me].” Petitioner

Adams’s phone call to Mr. Taylor’s office manager also required Mr. Taylor to explain the

situation at the hotel to his “spread boss.” Mr. Taylor explained that the “spread boss” is

the person in charge of a pipeline jobsite.

According to Mr. Taylor, he felt humiliation when discussing the hotel

situation with his spread boss: “When [my spread boss] pulled me aside it was more

embarrassing than anything else because of the simple fact that, you know, you’re making

me look bad, type thing, like I brought you to the job, how are you getting people calling

here because you’re not paying your bills.” Mr. Taylor testified that after completing this

particular job, he did not work for Price Gregory again.

At the conclusion of his testimony, Mr. Taylor was asked why he pursued

this lawsuit. He replied:

Honestly, the way I was raised was do the right thing,
say the right thing, try to walk in a straight line. And it’s
something that you gotta [sic] stand up for when you’re
wronged. This was something that was just wrong in all kinds
of ways. I think it was morally wrong. But at the end of the
day it was something I was judged on for the color of my skin,
not the content of my character.

He was asked if this experience caused him “any particular grief.” Mr. Taylor

stated:

Embarrassment, humiliation. But as a black man in
America, I see this on a daily basis, but you learn to live with
it. If you don’t like me for the color of my skin, I really don’t
have to deal with you on a daily basis. But when you impact
me directly and you’re trying to purposely harm me, then I
have to stand up for that. It’s like, no, I can’t accept that, I’m

5
 sorry. So that’s why I came from L.A. to say it was wrong and
we’re not [going to] stand for it.

Mr. Turner also testified during Respondents’ case-in-chief. He stated that,

like Mr. Taylor, he was one of the first Price Gregory employees to arrive on the jobsite.

Upon arriving at the McClure Hotel on October 26, 2011, Petitioner Adams informed him

that there were no long-term apartment rooms available, but that he would be at the top of

the “waiting list.” Like Mr. Taylor, Mr. Turner was given a “sleeper room” and testified

that “I agreed to pay the regular stay per night [for the ‘sleeper room’], which is a higher

rate, because I had nowhere else to go. So I just paid the regular rate until an apartment

became available.” Though he was one of the first Price Gregory employees to arrive, Mr.

Turner testified that he observed white coworkers getting long-term apartment rooms

before he did. 3 It took approximately one month from the time he arrived at the hotel until

he was provided with a long-term apartment room.

When asked if he expressed his complaint about other employees getting

long-term apartment rooms before he did to the Petitioners, Mr. Turner replied:

A. I did. I spoke with [Petitioner Adams] about it, and she
referred – she kept telling me that, you know, I was still on the
list and that when something came available that she would,
you know, she would move me.

Q. Okay. What did she say when you told her that there
were people moving in ahead of me?

3
During cross-examination, Mr. Turner was asked if he could name the white
coworkers who were given long-term apartment rooms before he was. He stated that he
knew their first names but did not recall their last names.

6
 A. Well, she kind of got frustrated, as if I was being smart,
maybe, the way I approached her. I just told her that, you
know, I know that some people had moved in before me, and I
felt like that was unfair. And I guess she took that as a dislike.

Q. Why do you say that?

A. Well, because of that she started asking me questions
about me being a drug dealer, about why I got gold teeth and I
work for a living and –
....
Q. In what context did it come up about whether or not
you-

A. Well, she said the last person that – when I got the
apartment, she said the last person which previously lived there
was a dope head and that, you know, he was a gambler-holic
[sic], and she said was I like that. And I told her I wasn’t. I
said, “I don’t do drugs and I don’t gamble.”

Additionally, Mr. Turner stated that he understood that when Petitioner

Adams called Price Gregory to complain about Mr. Taylor’s late parking fee, Petitioner

Adams also complained about Mr. Turner, despite the fact that he did not owe any

outstanding fees to the hotel. After finding out about this telephone call, Mr. Turner stated

that “[w]hen I got off work I immediately went home to the hotel and spoke with [Petitioner

Adams] about the accusations, you know, what she said.” In response to his inquiry, Mr.

Turner stated that Petitioner Adams said “‘[y]ou guys are obnoxious’ - you guys – ‘you

people, you’re obnoxious,’ you know, ‘I want you all out of here.’ And that was the

conversation. She just walked away from me.” When asked if Petitioner Adams’s

telephone call to his employer caused him concern, Mr. Turner testified:

7
 Yes, it did. I mean because I work hard – we work hard
to be in the position we’re in. You know, it took years for us
to get to this position, you know, on our job, you know, and
then for someone to call your job to destroy your livelihood,
which is me taking care of my family, my kids, that hurts, that
hurts me. I was embarrassed, you know, I was ashamed, you
know.

Finally, Mr. Turner was asked why he chose to pursue this lawsuit. He

stated:

Well, to be perfectly honest, we wanted our day in court,
you know. I mean the way I feel, I feel as if I was mistreated.
I feel like she judged me without actually getting to know me.
She don’t know nothing about me. All she knows is my
appearance. And I work hard for a living. I’m a citizen of the
United States of America, so therefore I should be treated as a
citizen.

Petitioner Adams testified during Respondents’ case-in-chief. She stated that

she was the sales manager at the McClure Hotel in October 2011. When asked if the

McClure Hotel had a “waiting list” for long-term apartment rooms, Petitioner Adams

stated:

A. Technically speaking, it wasn’t necessarily a waiting
list per se, but, yes, I did prioritize those who were actually in
the hotel to go first in priority for the apartment side. I had
very limited amount of apartments over there to work with.
But those who are in-house were priority.

Q. My question was limited, Ms. Adams, to –

A. But no, there was not technically a rooming list that I
took names and priorities, but no.

Q. Okay. So your testimony to this jury is there was not an
official waiting list?

8
 A. Technically speaking, no.

Petitioner Adams denied that she told Mr. Tuner that he was first on the

“waiting list.” However, during subsequent testimony, Petitioner Adams had the following

exchange with Respondents’ counsel:

Q. Did you tell Mr. Turner there was any type of waiting list?

A. I told him that there was a wait.

Q. So you told him there was a wait?

A. That I didn’t have anything available for him at the time,
but I would certainly put him at the top of my list. Maybe that’s
where he got a little confused. But, no, there was not a list, and
I did not say you’re number one to go into a room. I would not
do that, sir, I would not do that because I knew the dynamics
of everything. Seriously, no, sir.

Petitioner Adams confirmed that Mr. Taylor called the McClure Hotel prior

to his arrival and that she spoke with him on the telephone. However, she did not recall

“specifically saying yes, I have an apartment available.” When asked whether she had any

documentation showing that all of the long-term apartment rooms were occupied in

October 2011, Petitioner Adams stated, “I don’t have anything with me right now at the

moment, but I’m sure there could be – they were in extremely high demand, and the

availability for those apartments were very far and very few on the in between.” 4

4
During discovery, Respondents requested the following documents from
Petitioners: “Please provide copies of any ‘waiting lists,’ ‘sign-in-sheets,’ or other
documents evidencing the order in which apartments were let to applicants that were

9
 Next, Petitioner Adams denied that the reason Mr. Taylor and Mr. Turner

were eventually given long-term apartment rooms was because they complained to the

hotel’s general manager, Cindy Johnson. However, Petitioner Adams confirmed that

Cindy Johnson “had mentioned that they [Mr. Taylor and Mr. Turner] had – yes, they had

come to her, yes.” Counsel then asked, “was it not soon thereafter the gentlemen

complained to Miss [Cindy] Johnson that they got the two [long-term apartment] rooms?”

Petitioner Adams replied, “[y]es.”

Petitioner Adams confirmed that she called Price Gregory’s office manager

when Mr. Taylor had an outstanding fee. She stated that this was the first time she had

ever called a hotel occupant’s employer about a late payment. Respondents’ counsel then

asked about a white Price Gregory employee whose rent was also late: “Well, Mr. Gusik,

the white gentleman friend of yours, he was late sometimes for rent, wasn’t he?” Petitioner

Adams replied, “[m]aybe a day or so, yes, maybe a day or so.” However, Petitioner Adams

testified that she did not call Price Gregory regarding Mr. Gusik.

While Petitioner Adams generally denied disparaging Mr. Taylor during her

call to Price Gregory, she was asked whether she told Price Gregory that Mr. Taylor had

financial problems. She replied:

No. Listen, I did mention that evidently he has something –
there’s something going on that he’s late. I did not say he has
a gambling problem, he has a drug problem. I did let her [Price

utilized at any time from January 1, 2010 until the present day.” Petitioners’ response to
this request was “defendants have no materials responsive to this request.”

10
 Gregory’s office manager] know that he was late; I wasn’t sure
what the issue was, but it was what it was. That’s it.

Q. My question, ma’am, was did you tell [Price Gregory’s
office manager] specifically that he had financial problems?

A. Yes, I could – yes, yes, evidently, yes.

Finally, Respondents’ counsel asked Petitioner Adams if she made

disparaging remarks about Mr. Taylor and Mr. Turner to an attorney, Jay McCamic

(“Attorney McCamic”), who was previously involved in the case. She replied, “[n]o.”

During Petitioners’ case-in-chief, Petitioner Adams was again called to

testify. She denied referring to Mr. Taylor or Mr. Turner as a “drug addict,” “deadbeat,”

or “gambler.” Further, Petitioner Adams denied that white guests were given long-term

apartment rooms ahead of Mr. Taylor or Mr. Turner. During cross-examination, she denied

making any disparaging remarks about either Respondent generally, and she specifically

denied making any disparaging comments about either Respondent to Attorney McCamic:

Q. Okay. And you were also asked to deny all those things
about never said deadbeat, never said gambler, you never
accused these people of being gamblers or blowing their
checks on gambling or anything to anyone, did you?

A. No.

Q. Not even [to] Mr. McCamic, correct, ma’am?

A. No, no.

Following this testimony, Petitioners rested. Respondents called a rebuttal

witness—Attorney McCamic. Petitioners’ counsel objected to Attorney McCamic being

called as a rebuttal witness and had the following exchange with the trial judge:

11
 Petitioners’ Counsel: I will place on the record an objection to
calling [Attorney McCamic] as a witness. It’s not rebuttal
testimony. They could have put him on in their case-in-chief
to talk about if she [Petitioner Adams] allegedly said that she
called them – I assume he’s going to bring him in to say that
he spoke to her and she called them these names. I mean that’s
their case-in-chief.

Trial judge: Well, no, not until and unless she affirmatively
either admits to saying things or denies it, and she has denied
it, so it’s in direct rebuttal to that, I assume.
....
Let me just say briefly on the issue of this rebuttal
witness, [Respondents’ counsel] called her [Petitioner Adams]
in his case[-in-chief,] and he asked her that question
specifically, did you tell [Attorney] McCamic X, Y and Z, and
she denied it. He had every opportunity in his case-in-chief at
that point to rebut that testimony. He chose not to. He closed
his case-in-chief. You [Petitioners’ counsel] called her, she did
it again. This is in direct rebuttal to that. Had she not testified
in your case-in-chief there would be nothing else to rebut and
he would not have been able to call [Attorney] McCamic. So
that’s really why it’s coming up at this point.

Attorney McCamic testified that he was approached by Respondents about

representing them in their lawsuit, and agreed to do so. 5 He discovered that Respondents

had already filed a complaint, pro se, and he explained that “I think I entered a voluntary

dismissal [of the initial lawsuit], because I don’t think an answer had happened yet.”

Attorney McCamic testified that he called Petitioner Adams to notify her that he would be

representing the Respondents, and to notify her that the initial lawsuit would be dismissed

5
Attorney McCamic was not Respondents’ trial counsel. He testified that while his
law firm was representing the Respondents, “I haven’t had anything to do with the case for
a long time[.]”

12
and refiled by him. After hearing that Respondents’ initial lawsuit would be dismissed,

Attorney McCamic stated that Petitioner Adams “started talking about all this stuff about

them, kind of how terrible they were and all this, kind of like I was an ally, like, okay,

great, this is dismissed, it should have been, they’re terrible people, you know, whatever.”

He testified that he corrected Petitioner Adams by stating that he was preparing a new

lawsuit to file, and Petitioner Adams became “even more talkative” and said “that they

were terrible people and they were scam artists and all sorts of kind of scandalous stuff.”

Further, Attorney McCamic recalled that “[t]he casino . . . was mentioned and gambling

and the loss of money, meaning that they didn’t have any money, and they were basically

untrustworthy people that you couldn’t count on to pay the rent[.]”

The case was submitted to the jury, and it found Petitioners liable under the

WVHRA. The jury awarded each Respondent $475,000.00. Thereafter, Petitioners moved

for judgment as a matter of law or, alternatively, for a new trial under Rules 50(b) and

59(a), respectively, of the West Virginia Rules of Civil Procedure. 6 After the circuit court

entered its October 25, 2018, order denying this motion, Petitioners filed the instant appeal.

6
Rule 50(b) provides, in part:

If, for any reason, the court does not grant a motion for judgment as a matter
of law made at the close of all the evidence, the court is considered to have
submitted the action to the jury subject to the court’s later deciding the legal
questions raised by the motion. The movant may renew the request for
judgment as a matter of law by filing a motion no later than 10 days after

13
 II. STANDARD OF REVIEW

We will set out the standard of review for each issue as it is addressed below.

See State v. Boyd, 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017) (“We will dispense

with our usual standard of review section because each of the assignments of error has its

own review criteria.”); State v. Dunn, 237 W. Va. 155, 158, 786 S.E.2d 174, 177 (2016)

(“Therefore, we dispense with setting out a general standard of review. Specific standards

of review will be discussed separately as we address each assignment of error.”).

III. ANALYSIS

On appeal, Petitioners argue that: 1) Respondents “failed to present evidence

that the Petitioners violated the [WVHRA] and denied the Respondents accommodations

of the hotel in any way;” 2) the circuit court erred by allowing Attorney McCamic to testify;

and 3) the jury’s verdict was excessive.

entry of judgment and may alternatively request a new trial or join a motion
for a new trial under Rule 59.

Petitioners moved for judgment as a matter of law at the close of Respondents’ case-
in-chief and, again, at the close of evidence. Rule 59(a), provides, in part: “[a] new trial
may be granted to all or any of the parties and on all or part of the issues (1) in an action in
which there has been a trial by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law[.]”

14
 A. WVHRA

We first consider whether the circuit court erred by denying Petitioners’

renewed motion for judgment as a matter of law after trial pursuant to Rule 50(b).

Petitioners’ motion was based on their claim that Respondents failed to present evidence

during the trial that Petitioners withheld, denied or refused any accommodations,

advantages, privileges or services of the hotel.

Our standard of review is de novo. “The appellate standard of review for an

order granting or denying a renewed motion for a judgment as a matter of law after trial

pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo.”

Syl. Pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009). Further, we have held:

When this Court reviews a trial court’s order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the
evidence was such that a reasonable trier of fact might have
reached the decision below. Thus, when considering a ruling
on a renewed motion for judgment as a matter of law after trial,
the evidence must be viewed in the light most favorable to the
nonmoving party.

Syl. Pt. 2, Fredeking v. Tyler. With this standard in mind, we turn to Petitioners’ argument.

Our first step is to examine the WVHRA. It is to be “liberally construed to

accomplish its objectives and purposes[.]” W. Va. Code § 5-11-15 (1967). One objective

of the WVHRA is to “eliminate all discrimination in . . . places of public accommodations

by virtue of race.” W. Va. Code § 5-11-4 (2001). The specific provision of the WVHRA

15
at issue is W. Va. Code § 5-11-9(6)(A) (2016). 7 It provides that “[i]t shall be an unlawful

discriminatory practice, . . .

(6) For any person being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place of
public accommodations to:

(A) Refuse, withhold from or deny to any individual because
of his or her race, religion, color, national origin, ancestry, sex,
age, blindness or disability, either directly or indirectly, any of
the accommodations, advantages, facilities, privileges or
services of the place of public accommodations[.]

This Court has set forth the elements a plaintiff must satisfy to establish a

prima facie case of discrimination in a place of public accommodation:

In order to make a prima facie case of discrimination in a place
of public accommodation, the complainant must prove the
following elements:
(a) that the complainant is a member of a protected class;
(b) that the complainant attempted to avail himself of the
“accommodations, advantages, privileges or services” of a
place of public accommodation; and
(c) that the “accommodations, advantages, privileges or
services” were withheld, denied or refused to the complainant.

7
When examining this statute, we are mindful of our rules of statutory
interpretation. This Court has held that in deciding the meaning of a statutory provision,
“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.”
Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d
424, 438 (1995); see also Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384
(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be
accepted and applied without resort to interpretation.”); and Syl. Pt. 2, State v. Epperly,
135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.”).

16
Syl. Pt. 1, K-Mart Corp. v. Human Rights Comm’n, 181 W. Va. 473, 383 S.E.2d 277

(1989).

In the instant case, there is no dispute that Respondents satisfy the first two

elements of this test. Petitioners’ argument is based on its contention that Respondents did

not establish that the accommodations, advantages, privileges or services of the McClure

Hotel were withheld, denied or refused. Petitioners assert that they provided Respondents

with “sleeper rooms” upon arrival, and long-term apartment rooms once they became

available. Further, Petitioners state that Respondents needed to have demonstrated

something “actually refused, withheld, or denied.”

Moreover, Petitioners note that Respondents’ closing argument highlighted

Petitioner Adams’s rude behavior. According to Petitioners, rude behavior is insufficient

to prove a prima facie case of discrimination under the WVHRA. Petitioners cite this

Court’s ruling in K-Mart Corp. v. W. Va. Human Rights Comm’n, in which we stated

“[s]tanding alone, . . . rudeness is [in]sufficient to prove a prima facie case of

discrimination.” 181 W. Va. at 478, 383 S.E.2d at 282.

Upon review, we find no error with the circuit court’s ruling denying

Petitioners’ Rule 50(b) motion for judgment as a matter of law on Respondents’ WVHRA

discrimination claim. Viewing the evidence adduced at trial in a light most favorable to

Respondents, we find that they offered considerable evidence of the denial, refusal, and

withholding of the long-term apartment rooms through the following: 1) Mr. Taylor’s

testimony that he called the hotel, asked about long-term apartment rooms and was told

17
these rooms were available; 2) upon appearing in person at the hotel, Mr. Taylor was told

that the long-term apartment rooms were not available and that he would be placed on a

“waiting list;” 3) the hotel did not have a “waiting list;” 8 4) Mr. Taylor and Mr. Turner

testified that they both observed white coworkers, later-hired, and later-arriving, being

provided with long-term apartment rooms ahead of them; 9 5) after observing these

coworkers being provided with long-term apartment rooms ahead of them, Mr. Taylor and

Mr. Turner testified that they asked Petitioner Adams why this occurred, and she again

referred them to the non-existent “waiting list;” 6) Mr. Taylor and Mr. Turner brought their

complaint to the hotel’s general manager who told them that the hotel did not have a

“waiting list,” and referred them back to Petitioner Adams; and 7) Mr. Taylor and Mr.

Turner testified that they were provided with long-term apartment rooms shortly after

8
When asked if the hotel had a “waiting list,” Petitioner Adams testified
“[t]echnically speaking, no.” Further, Mr. Taylor testified that after he complained to the
hotel’s general manager, she told him that the hotel did not have a “waiting list.”
9
We note that Petitioners had the opportunity to cross-examine Mr. Taylor and Mr.
Turner about their inability to state the full names of the later-hired, later-arriving white
coworkers who were provided with long-term apartment rooms ahead of them. Further,
counsel for Petitioners emphasized the fact that Respondents did not know the full names
of these white coworkers during his closing argument, stating, “I mean that weighs on their
credibility as witnesses. That’s their main argument as to the denial of accommodations,
was that these white coworkers received rooms before them, but I can’t name one, . . . I
just saw them, I know it happened. . . . That’s not credible.” The jury had the opportunity
to consider this issue along with the totality of the evidence presented and determine
whether Respondents established their WVHRA discrimination claim.

18
complaining to the hotel’s general manager. 10 Based on the foregoing, it is clear that

Respondents presented ample evidence from which the jury could have concluded that they

were denied long-term apartment rooms for a period of their stay on the basis of their race.

Further, we disagree with Petitioners’ contention that Respondents failed to

establish a prima facie claim under the WVHRA because they were provided with “sleeper

rooms” upon arrival, and eventually provided with long-term apartment rooms. Petitioners

argue that because there was not a total withholding of accommodations, Respondents did

not establish a prima facie claim. This narrow, restrictive interpretation of the WVHRA is

not supported by the statute’s plain language, purpose, or caselaw from this Court.

The statutory provision at issue, W. Va. Code § 5-11-9(6)(A), is written

broadly, and provides that it is an unlawful discriminatory practice to “[r]efuse, withhold

from or deny to any individual because of his or her race, . . . either directly or indirectly,

any of the accommodations, advantages, facilities, privileges or services of the place of

public accommodations[.]” Id. (Emphasis added). This statutory language does not restrict

unlawful discriminatory practices to only those situations in which there has been a

complete withholding of accommodations. Further, one purpose of the WVHRA is to

“eliminate all discrimination in . . . places of public accommodations by virtue of race.”

W. Va. Code § 5-11-4 (2001). (Emphasis added). Finally, in Charleston Acad. of Beauty

10
Petitioner Adams confirmed that Respondents were provided with long-term
apartment rooms shortly after they complained to the hotel’s general manager.

19
Culture, Inc. v. W. Va. Human Rights Comm’n, No. 11-1286, 2012 WL 3129142, *14 (W.

Va. May 25, 2012)(memorandum decision), this Court found no error in the circuit court’s

rejection of the “contention that there is no violation of the [WVHRA] unless there is a

complete withholding of privileges or services.”

We also disagree with Petitioners’ argument that this Court’s ruling in K-

Mart v. W. Va. Human Rights Comm’n supports their position that Respondents failed to

establish a prima facie discrimination claim. In K-Mart, the Court found that “rudeness”

alone is insufficient to prove a prima facie case of discrimination. 181 W. Va. at 478, 383

S.E.2d at 282. Because the appellants in K-Mart “shopped without hindrance,” they were

unable to show that they “were actually denied, refused, or withheld any services or

amenities.” Id. The instant matter is distinguishable from K-Mart because Respondents

offered evidence of the denial, refusal, and withholding of long-term apartment rooms

through the testimony discussed above. The jury also heard testimony that Petitioner

Adams did not call Price Gregory to complain about a white coworker who was similarly

situated to Mr. Taylor regarding the late payment of rent, and that Petitioner Adams made

numerous disparaging comments to Respondents. These disparaging comments, while not

sufficient standing alone to establish a prima case of discrimination, are relevant to our

analysis. In K-Mart, the Court provided:

Standing alone, we do not believe rudeness is sufficient to
prove a prima facie case of discrimination. While we do not
mean to dismiss the effect of intimidation as an element in
discrimination, it is, at best, too objective and difficult to
quantify alone. Rather, intimidation should simply be treated

20
 as a factor in our test to determine whether the complainant has
made a prima facie case of discrimination.

181 W. Va. at 478-79, 383 S.E.2d at 282-83.

Thus, Petitioner Adams’s disparaging comments to Respondents, which

Petitioners characterize as mere “rudeness,” is a factor that may be considered when

examining whether Respondents established a prima facie case of discrimination.

Considering these comments, along with the other evidence presented by Respondents, we

reject Petitioners’ argument that our ruling in K-Mart supports their position that

Respondents failed to establish a prima facie discrimination claim.

Based on all of the foregoing, we reject Petitioners’ first assignment of error.

B. Rebuttal Witness

Petitioners’ second assignment of error is that the circuit court erred by

allowing Attorney McCamic to testify as a rebuttal witness. Petitioners moved for a new

trial based on this alleged error pursuant to Rule 59 of the West Virginia Rules of Civil

Procedure. This Court employs an abuse of discretion standard of review when considering

a circuit court’s ruling on a motion for a new trial. In Tennant v. Marion Health Care

Found., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995), the Court provided:

Thus, in reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of reversible
error under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.

21
 Petitioners argue that when they called Petitioner Adams to testify during

their case-in-chief, they did not ask her about her conversation with Attorney McCamic.

Instead, during cross-examination, Respondents’ counsel asked Petitioner Adams about

her conversation with Attorney McCamic. Therefore, Petitioners assert that the circuit

court erred by concluding that Petitioners opened the door to Attorney McCamic being

called as a rebuttal witness.

After review, we find no abuse of discretion with the circuit court’s ruling

permitting Attorney McCamic to testify. It is well-established that “[w]hether a plaintiff

will be allowed to introduce further evidence after the evidence in behalf of a defendant is

concluded is ordinarily within the discretion of the trial court, and the exercise of such

discretion will rarely constitute ground for reversal.” Syl. Pt. 10, Edmiston v. Wilson, 146

W. Va. 511, 120 S.E.2d 491 (1961). Likewise,

[u]nder Rule 611(a) of the West Virginia Rules of Evidence, a
trial court has broad discretion in permitting or excluding the
admission of rebuttal testimony, and this Court will not disturb
the ruling of a trial court on the admissibility of rebuttal
evidence unless there has been an abuse of discretion.

Syl. Pt. 2, Belcher v. Charleston Area Med. Ctr., 188 W. Va. 105, 422 S.E.2d 827 (1992). 11

11
Rule 611(a) of the West Virginia Rules of Evidence provides that “[t]he court
should exercise reasonable control over the mode and order of examining witnesses and
presenting evidence so as to: (1) make those procedures effective for determining the truth;
(2) avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment.” See also Syl. Pt. 2, Perdue v. Caswell Creek Coal & Coke Co., 40 W. Va.
372, 21 S.E. 870 (1895) (“Whether plaintiff shall be allowed to give further evidence after
defendant’s evidence is closed is within the discretion of the trial court; and its exercise

22
 In the instant case, Petitioner Adams denied making derogatory statements

about Respondents, including to Attorney McCamic, during Respondents’ case-in-chief.

When called to testify during Petitioners’ case-in-chief, Petitioner Adams again denied

making derogatory comments about Respondents. Counsel for Petitioners asked her

specifically whether she had called either Mr. Taylor or Mr. Turner “a druggie or a drug

addict,” “a deadbeat,” or a “gambler.” She replied “no” to each of these questions. When

counsel for Respondents cross-examined Petitioner Adams, she again denied making any

of these remarks, and specifically denied making such derogatory remarks to Attorney

McCamic. Based on this testimony, we find that the circuit court did not abuse its

discretion by permitting Respondents to call Attorney McCamic as a rebuttal witness.

“[T]he most significant limitation on the court’s authority under Rule 611(a) is that the

action of the court must be reasonable.” Wheeler v. Murphy, 192 W. Va. 325, 333, 452

S.E.2d 416, 424 (1994) (citation omitted). Because Petitioner Adams denied making

disparaging comments about Respondents when testifying during Petitioners’ case-in-

chief, it was reasonable for the circuit court to permit Attorney McCamic to testify in

rebuttal that Petitioner Adams had made such statements. Therefore, we find no abuse of

discretion with the circuit court’s ruling on this issue. 12

will rarely, if ever, be the ground of reversal by an appellate court. Clearly, he is entitled
to give evidence to rebut that of the defendant.”).
12
On appeal, Petitioners asserted a number of errors regarding the circuit court’s
ruling permitting Attorney McCamic to testify. These errors include that his testimony

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 C. Jury Verdict

The final assignment of error is that the circuit court erred by denying

Petitioners’ motion for a new trial on the basis that the jury verdict was excessive. As with

the prior assignment of error, we employ an abuse of discretion standard of review when

reviewing a circuit court’s ruling on a motion for a new trial. Tennant v. Marion Health

Care Found., 194 W. Va. at 104, 459 S.E.2d at 381.

Similar to their argument that Respondents failed to establish a prima facie

discrimination claim under the WVHRA, Petitioners argue that Respondents were not

denied accommodations at the McClure Hotel—they were provided with “sleeper rooms”

upon their arrival, and long-term apartments rooms once available. Additionally,

Petitioners state that: 1) “[t]here was no evidence adduced that either [Respondent was]

treated any differently than any white guest or their white co-workers;” 2) Respondents

submitted no evidence of out-of-pocket losses or other quantifiable damages; and 3) the

was irrelevant or, if relevant, unfairly prejudicial; that it violated the Rules of Professional
Conduct; and that it was improper testimony from a party’s lawyer. During the trial,
Petitioners only objected to Attorney McCamic’s testimony on the ground that it was
improper rebuttal. The circuit court addressed and denied this specific objection. The
circuit court did not, and could not, address these additional objections that were not raised.
“An objection to a circuit court ruling that admits evidence must be timely made and must
state the specific ground of the objection, if the specific ground is not apparent from the
context.” Syl. Pt. 3, Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 694
S.E.2d 815 (2010). Because Petitioners did not object to Attorney McCamic’s testimony
on the additional grounds it argues before this Court, we decline to consider these
arguments. See Coleman v. Sopher, 201 W. Va. 588, 601, 499 S.E.2d 592, 605 (1997)
(“Timely and specific objections are required under Rule 103(a) of the West Virginia Rules
of Evidence, and Rule 46 of the West Virginia Rules of Civil Procedure.”).

24
jury’s verdict was influenced by passion and/or a mistaken view of the case because it

based its verdict “on its own distaste for how [Petitioner] Adams treated, interacted with,

or allegedly thought about” Respondents.

After review, we find no abuse of discretion with the circuit court’s ruling

rejecting Petitioners’ argument that the verdict was excessive. We have held that “[c]ourts

must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first

blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion,

partiality, prejudice or corruption.” Syl. Pt. 1, Addair v. Majestic Petroleum Co., Inc., 160

W. Va. 105, 232 S.E.2d 821 (1977). In cases where

the compensation which the plaintiff is entitled to recover is
indeterminate in character, the verdict of the jury may not be
set aside as excessive unless it is not supported by evidence or
is so large that the amount thereof indicates that the jury was
influenced by passion, partiality, prejudice or corruption, or
entertained a mistaken view of the case.

Syl. Pt. 7, in part, Poe v. Pittman, 150 W. Va. 179, 144 S.E.2d 671 (1965) (citation

omitted). “[A] mere difference of opinion between the court and the trial jury concerning

the proper amount of recovery will not justify either the trial court or this Court in setting

aside the verdict on the ground of inadequacy or excessiveness.” Sargent v. Malcomb, 150

W. Va. 393, 396, 146 S.E.2d 561, 564 (1966) (citation omitted).

Petitioners’ argument that the jury verdict was excessive downplays and

minimizes the evidence of racial discrimination adduced at trial. The jury heard evidence

that Respondents were denied the long-term apartment rooms through the guise of a non-

existent “waiting list;” that similarly situated white coworkers were given long-term

25
apartment rooms immediately; that Petitioner Adams did not call Price Gregory to

complain about a white coworker who was similarly situated to Mr. Taylor regarding the

late payment of rent; and testimony from both Mr. Taylor and Mr. Turner about the distress

that this treatment caused them. Further, we find no support for Petitioners’ speculative

assertion that the jury must have entertained a mistaken view of the case. Petitioners have

failed to establish that the jury’s verdict was based “on its own distaste for how [Petitioner]

Adams treated, interacted with, or allegedly thought about” Respondents.

Additionally, the circuit court properly instructed the jury on the damages it

could award, including damages for “emotional distress, upset, humiliation, and

embarrassment, and impairment to reputation.” As noted in the circuit court’s order

denying Petitioners’ motion for judgment as a matter of law, or, alternatively, a new trial,

“[w]hen it came to assessing the damages in this case, the jury was appropriately instructed,

without objection by the [Petitioners] as to the specific language used[.]” (Emphasis

added).

In sum, we agree with the circuit court’s determination that it had “no reason

to believe that the jury did anything other than listen to the evidence and calculate an award,

based upon the instructions given to them, [that] they felt was just, fair, and appropriate.”

Based on the foregoing, we find the circuit court did not abuse its discretion in denying

Petitioners’ motion for a new trial based on the excessiveness of the verdict.

26
 IV. CONCLUSION

We affirm the circuit court’s October 25, 2018, order denying Petitioners’

motion for judgment as a matter of law, or, alternatively, a new trial.

Affirmed.

27