STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Mark R. Puszkarczuk and Raymond H. Tachoir, 

members of 340 Defense Range and Training Center, LLC, FILED 

a West Virginia limited liability company, 

Plaintiffs Below, Petitioners 

April 8, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 15-0130 (Jefferson County 13-C-364) OF WEST VIRGINIA 

340 Defense Range and Training Center, LLC,
 

a West Virginia limited liability company,
 

and Mark O’Dell,
 

Defendants Below, Respondents
 

MEMORANDUM DECISION 

Petitioners and plaintiffs below, Mark R. Puszkarczuk and Raymond H. Tachoir, 

members of 340 Defense Range and Training Center, LLC, a West Virginia limited liability 

company, by counsel Floyd M. Sayre, III, appeal the Circuit Court of Jefferson County’s Order 

denying their motion for a new trial, entered on January 16, 2015. Respondents 340 Defense 

Range and Training Center, LLC, and Mark O’Dell, by counsel John Michael Cassell, filed a 

response. Petitioners filed a reply. On appeal, petitioners claim that the weight of the evidence 

did not support the jury’s verdict in favor of respondents. 

This 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 order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Factual and Procedural Background 

This case involves a dispute between members of a limited liability company, 

Respondent 340 Defense Range and Training Center, LLC (“the company”), in which the parties 

accused each other of misconduct. Petitioners filed their civil action against respondents in 

October of 2013, alleging, in relevant part, that Respondent Mark O’Dell breached his fiduciary 

duty to the company and converted the assets of the company for his personal use or the use of a 

third-party. Respondent O’Dell filed an answer and a counterclaim alleging, in relevant part, that 

petitioners breached the terms of a promissory note issued to Respondent O’Dell. 

The case proceeded to a jury trial in October of 2014. The evidence at trial revealed that 

Petitioners Mark R. Puszkarczuk and Raymond H. Tachoir, and Respondent O’Dell entered into 

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an agreement whereby petitioners purchased seventy-five percent of the assets of the company 

and respondent retained twenty-five percent of the assets as a silent partner. Petitioners executed 

a promissory note1 that was secured by the assets of the company, but failed to make timely 

payments pursuant to the note’s terms. In addition, on June 1, 2011, Respondent O’Dell and the 

company2 entered into a lease agreement to operate the shooting range on property owned by 

Respondent O’Dell. 

Petitioners operated the company for approximately eighteen months. Petitioners claimed 

that Respondent O’Dell fraudulently informed them that they were required to shut down the 

company pursuant to an order of the Jefferson County Planning Department, when no such order 

had been issued. Petitioners further claimed that, while the parties were attempting to obtain a 

line of credit from the Bank of Charles Town, Respondent O’Dell obtained a bond in the name of 

a third-party and himself without their knowledge. Petitioners claimed that after obtaining the 

bond, Respondent O’Dell obtained the occupancy permit in his own name and ordered 

petitioners to stay off the property while a third-party operated the shooting range to their and the 

company’s exclusion. 

In his defense and in support of his counterclaim, Respondent O’Dell introduced 

evidence that, in the early morning hours of January 19, 2013, he discovered petitioners 

removing business records, bank account information, and other property from the company, 

including computers, file cabinets, and customer lists. In addition, Respondent O’Dell introduced 

evidence that petitioners misused and misappropriated company assets and accused petitioners of 

hiding business records from the jury pertaining to this conduct.3 

Respondent O’Dell also testified that he made every effort to obtain the security from the 

Bank of Charles Town needed to make the improvements required by the Jefferson County 

Planning and Zoning Office. As part of this effort, Respondent O’Dell provided tax returns and 

other personal information that was required by the bank. However, petitioners failed to provide 

their information to the bank, and the bank, consequently, took no action on the request. The 

company was dissolved by the West Virginia Secretary of State in December of 2012. 

Respondent O’Dell further testified that he never ordered petitioners off the property; but 

rather, he was forced to proceed on his own without their cooperation to obtain bank security for 

1 Petitioners state that they paid $25,000 and executed the promissory note in the amount 

of $75,000. 

2 Petitioner Puszkarczuk signed the lease agreement on behalf of the company. 

3 Respondent O’Dell states that, although petitioners operated the company for eighteen 

months, they only produced records from June 2012 through December 2012. Respondent 

O’Dell introduced testimony that in January of 2012, petitioners misused company assets to 

attend a national gun show for five days in Las Vegas, where petitioners hired prostitutes, 

gambled, and drank heavily. Additionally, Respondent O’Dell introduced testimony that 

petitioners consumed and sold illegal moonshine whiskey at the shooting range while it was 

under their operation. 

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the bond to secure the completion of the improvements necessary to satisfy the Planning and 

Zoning Office. Respondent O’Dell testified that he told petitioners that the Planning and Zoning 

Office would allow the shooting range to remain open if they obtained the bank security for the 

required site improvements, and that the range was ordered closed after petitioners failed to 

cooperate in obtaining the security. Respondent O’Dell further testified that it was only after 

petitioners absconded with the company assets on January 19, 2013, that he moved forward on 

his own and at his own expense to satisfy the Planning and Zoning Office by obtaining the bank 

security for the Site Plan Improvements Bond. 

As evidenced from the above recitation of the trial testimony, issues of fact were 

contested by the parties. The jury returned a verdict in Respondent O’Dell’s favor on petitioners’ 

breach of fiduciary duty and conversion claims. As for Respondent O’Dell’s counterclaim, the 

jury found that petitioners breached the terms of the promissory note and the circuit court 

awarded damages in the amount of $11,634.00.4 

The circuit court entered a Judgment Order memorializing the jury’s verdict on October 

31, 2014. Petitioners filed their motion for a new trial on November 10, 2014, arguing that (1) 

the weight of the evidence supported a finding that Respondent O’Dell violated his fiduciary 

duty, and (2) the weight of the evidence supported a finding that Respondent O’Dell converted 

the company’s assets for his or a third-party’s use. By order entered on January 16, 2015, the 

circuit court denied the motion for a new trial, and this appeal followed. 

Discussion 

On appeal, petitioners raise the same two arguments presented in their motion for a new 

trial, that is, (1) that the circuit court erred in denying petitioners’ motion for a new trial because 

the weight of the evidence clearly supported a finding by the jury that Respondent O’Dell 

breached his fiduciary duty as a member of the limited liability company to plaintiffs and further 

continues to use the assets of the limited liability company for his own use to the exclusion of 

petitioners; and (2) that the circuit court erred in denying petitioners’ motion for a new trial 

because the weight of the evidence clearly supported a finding by the jury that Respondent 

O’Dell took and converted the assets of the company for his personal use or the use of a thirdparty to the exclusion of petitioners. 

This Court has held as follows with respect to our review of the circuit court’s ruling on a 

motion for a new trial: 

“When a trial judge vacates a jury verdict and awards a new trial pursuant 

to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the 

authority to weigh the evidence and consider the credibility of the witnesses. If 

the trial judge finds the verdict is against the clear weight of the evidence, is based 

on false evidence or will result in a miscarriage of justice, the trial judge may set 

aside the verdict, even if supported by substantial evidence, and grant a new trial. 

4 Additionally, the jury found that petitioners did not convert assets of the company for 

their personal use and the company did not breach the June 1, 2011, lease agreement. 

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A trial judge’s decision to award a new trial is not subject to appellate review 

unless the trial judge abuses his or her discretion.” Syllabus Point 3, in part, In re 

State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). 

Syl. Pt. 2, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). 

We have further held that 

[i]n determining whether there is sufficient evidence to support a jury 

verdict the court should: (1) consider the evidence most favorable to the 

prevailing party; (2) assume that all conflicts in the evidence were resolved by the 

jury in favor of the prevailing party; (3) assume as proved all facts which the 

prevailing party’s evidence tends to prove; and (4) give to the prevailing party the 

benefit of all favorable inferences which reasonably may be drawn from the facts 

proved. 

Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983). 

Petitioners first argue that the circuit court erred in denying their motion for a new trial 

because the weight of the evidence clearly supported a finding by the jury that Respondent 

O’Dell breached his fiduciary duty as a member of the company and further continues to use the 

assets of the company for his own use to the exclusion of petitioners. Petitioners direct us to 

West Virginia Code § 31B-4-409(a), which provides that “[t]he only fiduciary duties a member 

owes to a member-managed company and its other members are the duty of loyalty and the duty 

of care imposed by subsections (b) and (c) of this section.” Subsection (b) limits the duty to 

loyalty at follows: 

(1) To account to the company and to hold as trustee for it any property, profit or 

benefit derived by the member in the conduct or winding up of the company’s 

business or derived from a use by the member of the company's property, 

including the appropriation of a company’s opportunity; 

(2) To refrain from dealing with the company in the conduct or winding up of the 

company’s business as or on behalf of a party having an interest adverse to the 

company; and 

(3) To refrain from competing with the company in the conduct of the company’s 

business before the dissolution of the company. 

Petitioners contend that the verdict demonstrates that the jury was confused as to the law 

because the evidence proved that Respondent O’Dell failed to tell petitioners that the range did 

not need to close; obtained a bond in his own or a third-party’s name; forced petitioners off the 

property; and operated the range as a sole proprietorship. 

Upon our review of the record and being mindful of our standard of review, we must 

reject petitioners’ argument. As Respondent O’Dell argues, all of the parties’ factual allegations 

were disputed and the jury resolved the contradictions in its verdict for respondents. This matter 

does not require this Court to interpret or analyze the statutory obligations for the members of a 

limited liability company; the circuit court properly instructed the jury regarding the duty of 

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loyalty and breach of fiduciary duty. Petitioner did not object to these instructions at trial. In fact, 

the record reflects that the parties collaborated in their preparation of the instructions to be 

presented to the court before closing arguments. We find no error in the circuit court’s refusal to 

disturb this finding. 

The same can be said for petitioners’ second assignment of error where they assert that 

Respondent O’Dell converted the assets of the company for his personal use to their exclusion. 

Respondent O’Dell and his son testified that on January 19, 2013, they witnessed petitioners 

removing records and property from the company in the early morning hours under the cover of 

darkness. At trial, petitioners did not produce the records and other materials taken; instead, they 

produced only six months of bank statements. The jury evaluated this evidence and found in 

favor of Respondent O’Dell on petitioner’s conversion claim.5 In considering petitioner’s motion 

for a new trial, the circuit court properly (1) considered the evidence most favorable to 

respondents; (2) assumed all conflicts in the evidence were resolved in respondents’ favor; (3) 

assumed as proved all facts that respondents’ evidence tended to prove; and (4) gave respondents 

the benefit of all favorable inferences that reasonably may have been drawn from the facts 

proved. See Orr, at Syl. Pt. 5. 

For the foregoing reasons, we affirm the denial of petitioners’ motion for a new trial. 

Affirmed. 

ISSUED: April 8, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

5 While not perfectly clear, petitioners appear to also argue that Respondent O’Dell’s 

continued operation of the gun range constituted conversion as well. As support, petitioners point 

to the jury’s finding that the company did not breach or default on the lease dated June 1, 2011. 

However, as Respondent O’Dell points out, petitioners’ suit fails to mention the lease; therefore, 

we cannot conclude that the jury’s finding as to petitioners’ conversion claim must be reversed 

due to its finding that the company did not breach the lease. 

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