January 6, 2017
Mitchell Brozik and MB Security, LLC, Defendants Below, Petitioners
Betty Parmer, Plaintiff Below, Respondent, and Kourt Security Partners, LLC, Third-Party Defendant Below, Respondent And Betty Parmer, Plaintiff Below, Petitioner
Mitchell Brozik and MB Security, LLC, Defendants Below, Respondents, and Thomas Kupec and Brandon Kupec, Defendants Below, Respondents, and Gregory Morgan, Defendant Below, Respondent And Betty Parmer, Plaintiff Below, Petitioner
United Bank, Inc., a West Virginia corporation, and Randall Williams, Defendants Below, Respondents
County 13-C-651, 14-C-374
three consolidated appeals concern litigation sparked by a
series of financial transactions involving Betty Parmer;
Mitchell Brozik and his company, MB Security, LLC; Thomas
Kupec, Brandon Kupec, and Gregory Morgan, three Clarksburg,
West Virginia, attorneys; and United Bank and its loan
officer, Randall Williams. The appeals in Docket Nos. 16-0292
and 16-0400 stem from a jury trial in the Circuit Court of
Monongalia County, in which the jury returned a verdict in
favor of Betty Parmer and against Mitchell Brozik and MB
Security, LLC, in the amount of $1.5 million for breach of
fiduciary duties, breach of contract, and fraud, and an
additional $200, 000 in punitive damages, for a total award
of $1.7 million. The jury also heard Betty Parmer's
claims of negligence, legal malpractice, breach of fiduciary
duties, and fraud against Respondents/Defendants below Thomas
Kupec, Brandon Kupec, and Gregory Morgan, but found no
liability on the part of these three parties.
in Docket No. 16-0292, Petitioners/Defendants below, Mitchell
Brozik ("Mr. Brozik") and MB Security, LLC
("MB Security"), by counsel William J. Leon, appeal
the circuit court's "Trial Order, " entered on
December 21, 2015, and its "Order Denying Brozik and MB
Security [sic] Post Trial Motions, " entered on February
23, 2016. Respondent/Plaintiff below Betty Parmer ("Ms.
Parmer"), by counsel S. Sean Murphy, filed a response.
Additionally, Respondent/Third-Party Defendant below Kourt
Security Partners, LLC ("Kourt Security"), by
counsel Charles J. Kaiser, Jr. and Jeffrey D. Kaiser, filed a
response. Mr. Brozik and MB Security filed a reply.
Docket No. 16-0400, Ms. Parmer, by counsel S. Sean Murphy,
appeals the circuit court's "Trial Order, "
entered on December 21, 2015, and its order denying her
motion for amended judgment and/or for a new trial, entered
on March 15, 2016, as it related to the jury's adverse
verdict regarding her claims against the three attorney
defendants. Mr. Brozik and MB Security, by counsel William J.
Leon, filed a summary response. Thomas Kupec and Brandon
Kupec, by counsel, David D. Johnson, III and Larry A. Winter,
filed a response. Gregory Morgan, by counsel Peter T.
DeMasters, Kyle T. Turnbull, and Mina R. Gantous, also filed
the third consolidated case, Docket No. 16-0238, arises from
the dismissal of a separate, but related, civil action filed
by Ms. Parmer against United Bank, Inc. and Randall Williams
(collectively, "United Bank"). In this appeal, Ms.
Parmer, by counsel S. Sean Murphy, appeals the Circuit Court
of Monongalia County's order granting United Bank's
motion for summary judgment, entered on February 12, 2016,
and its order denying Ms. Parmer's motion to reconsider
the denial of her motion to amend her complaint, entered on
February 18, 2016. United Bank, by counsel Shawn P. George,
filed a response.
Court has considered the parties' briefs and the record
on appeal in each of the three above-styled cases. 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 consolidating the
appeals and affirming the circuit court's orders is
appropriate under Rule 21 of the Rules of Appellate
and Procedural Background
Nos. 16-0292 and 16-0400: Ms. Parmer's claims against Mr.
Brozik, MB Security, Thomas Kupec, Brandon Kupec, and Gregory
appeals stem from a series of financial transactions, the
most important of which was a secured party sale of corporate
assets that occurred on May 5, 2012. At the sale, Ms. Parmer
foreclosed on assets owned by Secure US, a corporation owned
by Mr. Brozik. Ms. Parmer is Mr. Brozik's aunt, with
whom he enjoyed a close relationship throughout his life. Ms.
Parmer is a resident of Harrisburg, Pennsylvania, and was 76
years old at the time of the transaction. Ms. Parmer and her
husband built, operated, and sold multiple businesses during
their marriage. Following their divorce in 1991, Ms. Parmer
received a business and other investments worth several
million dollars. It is undisputed that Ms. Parmer routinely
provided financial assistance to Mr. Brozik over the years
leading up to the 2012 transaction giving rise to her
transaction at the center of this case was the result of Mr.
Brozik seeking financial assistance from his aunt because he
was at risk of losing his business, Secure US. In short,
Secure U.S. had pledged all of its assets as collateral to
secure a loan that Ms. Parmer purchased from a creditor of
Secure U.S. in April 2012. Following the secured party sale
on May 5, 2012, Ms. Parmer became the owner of Secure
US's assets. Thereafter, Ms. Parmer and Mr. Brozik
entered into a management agreement that provided that a new
company formed by Brozik, MB Security, would manage Secure
US's assets that Ms. Parmer had purchased and would
continue to operate the business as usual.
Parmer filed suit in September of 2013, naming Mr. Brozik and
MB Security as defendants, and claiming breach of fiduciary
duties, fraud, conspiracy, and conversion. Ms. Parmer also
named as defendants three attorneys who were involved in the
transaction, Thomas Kupec, Brandon Kupec, and Gregory Morgan.
The Kupecs represented Mr. Brozik and Secure US; Gregory
Morgan is unaffiliated with the Kupecs and presided over the
secured party sale on May 5, 2012. Against the attorney
defendants, Ms. Parmer raised the same claims that she raised
against Mr. Brozik and MB Security, and added claims of
negligence, legal malpractice, and breach of contract. In
February of 2014, Ms. Parmer sought to terminate the
management agreement with MB Security. By agreed order, the
parties terminated the agreement and transferred operation of
the business to Ms. Parmer. Additionally, Mr. Brozik and MB
Security were unsuccessful in their attempts to have the
circuit court dismiss Ms. Parmer's fraud claim on the
basis that it lacked specificity.
Brozik and MB Security filed their answer and a counterclaim
in August of 2014. In their counterclaim, they asserted
breach of contract, tortious interference with business
opportunities, and conversion of Mr. Brozik's personal
property. In addition, Mr. Brozik and MB Security filed a
third-party complaint against Kourt Security, the entity that
had purchased the Secure U.S. assets from Ms. Parmer during
the pendency of this case below. Against Kourt Security, Mr.
Brozik and MB Security raised claims of tortious interference
and conversion, and sought indemnification and contribution
for any damages that may be awarded to Ms. Parmer.
discovery, the parties filed dispositive motions. Mr. Brozik
and MB Security moved for summary judgment on Ms.
Parmer's breach of fiduciary duty, fraud, and conspiracy
claims, and also argued that Ms. Parmer suffered no damages.
The circuit court denied Mr. Brozik's and MB
Security's motion by order entered in November of 2015.
Kourt Security was granted summary judgment with respect to
Mr. Brozik's conversion of lost wages and profits and
tortious interference claims. Mr. Brozik's claim that
Kourt converted his personal property, his claims of quantum
meruit for rent, and property damage claim survived summary
judgment. Additionally, the circuit court dismissed Mr.
Brozik's and MB Security's claim against Kourt
Security for indemnification and contribution. The circuit
court granted summary judgment in favor of the Kupecs and Mr.
Morgan only with respect to Ms. Parmer's conspiracy
claim. Finally, Ms. Parmer sought partial summary judgment in
which she sought a declaration that she purchased Secure
US's assets subject to a judgment lien held by Security
Alarm Financing Services, Inc. ("SAFE"), which the
circuit court denied.
addressing the parties' respective motions, the following
claims were presented to the jury: (1) Ms. Parmer's
claims of fraud, breach of contract, and breach of fiduciary
duty against Mr. Brozik and MB Security; (2) Ms. Parmer's
claims of fraud, breach of fiduciary duty, legal malpractice,
and negligence against the Kupecs and Mr. Morgan; and (3) Mr.
Brozik's and MB Security's claims of conversion of
personal property, property damage, and quanum meruit for
rent against Kourt Security. The case proceeded to a jury
trial in December of 2015.
The Trial Evidence
evidence revealed that Mr. Brozik's financial
difficulties, at least as they related to the present
litigation, began around 2008. Secure U.S. defaulted on a
loan that it had obtained in 2007 from LaSalle Bank, which
was later acquired by Bank of America. Bank of America sued
Secure U.S. in the United States District Court of the
Northern District of Illinois as a result of the default, and
was granted summary judgment on the $3.5 million owed on the
LaSalle Bank note. Secure U.S. was ordered to turn over its
assets that it had pledged as collateral on the note. To
avoid Bank of America's collection efforts, in 2009, Mr.
Brozik sought help from Milan Puskar, a family friend. Mr.
Puskar agreed to purchase the loan in order to acquire all of
the related debt and security instruments and to extend Mr.
Brozik an additional $900, 000 in credit, resulting in Mr.
Brozik and Secure U.S. owing Mr. Puskar approximately $4
million. Mr. Brozik and Secure U.S. pledged their personal
property as collateral to secure the line of credit. The
Secure U.S. debt and security instruments were held by the
Puskar Family Trust. Because the indebtedness of Secure U.S.
and Mr. Brozik was prior in time to the SAFE Judgment lien,
Puskar lien was superior in priority.
of 2011, SAFE initiated efforts in the United States District
Court for the Northern District of West Virginia to execute
on its $1.132 million judgment against Secure US. As noted
above, the Kupecs represented Secure U.S. in the SAFE matter.
In March of 2012, a federal magistrate ordered that a
judicial sale of Secure US's assets be held on May 16,
2012. In the midst of SAFE's collection efforts, in
October of 2011, Mr. Puskar died unexpectedly. The Puskar
Trust sought to divest itself of the Secure U.S. debt and
security instruments, and was willing to accept $2.5 million
from Mr. Brozik for the note with a face value of over $4
million. Around early April of 2012, Mr. Brozik approached
Ms. Parmer to ask her if she was willing to loan him the $2.5
million. Ms. Parmer agreed to do so, and borrowed the
necessary money from Centra Bank (now United Bank) in
Morgantown, West Virginia. Ms. Parmer personally arranged for
the loan and negotiated the terms, without counsel, with bank
representative Randall Williams. Ms. Parmer's goal was to
assist her nephew in keeping his business operating.
rather than loaning Mr. Brozik the money, Ms. Parmer agreed
to purchase the notes from the Puskar Trust herself, and
then, according to Mr. Brozik and the attorney defendants,
further agreed to foreclose on Secure US's assets prior
to the SAFE judicial foreclosure scheduled for May of 2012.
The alleged plan was for Mr. Brozik to then repay Ms. Parmer
from the profits generated by continuing to operate the
business. Mr. Brozik advised Brandon Kupec of his agreement
with Ms. Parmer, and Brandon Kupec called Ms. Parmer and
confirmed her understanding of the
transactions. Ms. Parmer traveled to Morgantown for the
closing on her loan from United Bank, which took place on
April 19, 2012. That same day, following the closing on the
loan, Ms. Parmer met with representatives from the Puskar
Trust and executed the necessary documents for her to acquire
the LaSalle/Bank of America note, Puskar line of credit, and
related security instruments. As a result, Ms. Parmer stepped
into the shoes of the Puskar Trust and acquired the total
indebtedness of about $4 million secured by a first lien on
all of Secure US's assets, which was superior to
SAFE's $1.132 million judgment lien against Secure US.
Parmer's next action was to give notice to Secure U.S.
that she was calling on it to cure its default under the note
and line of credit. Mr. Brozik then responded to Ms.
Parmer's demand and stated that Secure U.S. was unable to
cure the default. By letter dated April 20, 2012, Ms. Parmer
requested that foreclosure proceedings commence. All of the
foregoing letters were drafted by Brandon Kupec on behalf of
Secure US. After discovering a conflict of interest with the
initial attorney selected, the Kupecs requested that Gregory
Morgan conduct the foreclosure sale. Mr. Morgan spoke with
Ms. Parmer by telephone and explained that he would be
conducting the foreclosure sale, and she confirmed that was
her intention. According to Mr. Morgan, he and Ms. Parmer
agreed that the goal of the sale was to make her the owner of
the Secure U.S. assets. Ms. Parmer authorized Mr. Morgan to
issue a bid of up to $4 million on her behalf.
secured party foreclosure sale took place on May 2, 2012. Of
the seventeen attendees, there were only two bidders: Patrick
Egan, owner of Kourt Security, and Mr. Morgan, on Ms.
Parmer's behalf. Mr. Egan made a final bid of $3.6
million. Mr. Morgan then placed the winning bid for Ms.
Parmer in the amount of $4 million. As a result, Ms. Parmer
became the owner of Secure US's assets.
the time of the sale in May of 2012, Mr. Brozik organized MB
Security for the purpose of operating the security business
using the former Secure U.S. assets. At Mr. Brozik's
request, Brandon Kupec contacted Ms. Parmer to discuss her
signing a management agreement with MB Security, which
obligated MB Security to pay the $2.5 million note that Ms.
Parmer obtained from United Bank and entitled MB Security to
receive all profits and gains from the management of the new
company. Ms. Parmer requested that Brandon Kupec make several
modifications to the agreement, which he did. Ms. Parmer then
signed the agreement in August of 2012.
believed that it was aggrieved by the May 5, 2012, secured
party sale, and filed suit against Ms. Parmer, Mr. Brozik,
and Secure U.S. in the United States District Court for the
Northern District of West Virginia on May 22, 2012. SAFE
alleged that the sale was a fraudulent attempt to deny it the
benefit of its $1.132 million judgment against Secure US.
SAFE sought a declaration that its judgment lien survived the
secured party sale and that Ms. Parmer be found personally
liable for its judgment against Secure US. The District Court
denied SAFE's motion for summary judgment that its
judgment survived the sale and further ruled that Ms. Parmer
could not be held personally liable under the theory of
successor liability. However, despite these rulings, Ms.
Parmer and SAFE entered into a settlement agreement wherein
Ms. Parmer stipulated that (1) she was not a good faith
purchaser of the Secure U.S. assets; (2) she took the Secure
U.S. assets subject to SAFE's judgment lien; and (3) she
was personally liable for SAFE's judgment
lien. The crux of Ms. Parmer's claims in the
present lawsuit was that she was unaware that she would
become the owner of Secure US's assets; she alleged that
she merely intended to help her nephew in his time of
the December of 2015, jury trial, the jury returned the
following verdict: (1) neither Thomas nor Brandon Kupec
breached any fiduciary duties owed to Ms. Parmer; (2) Mr.
Brozik and MB Security breached both a contract with and
fiduciary duties owed to Ms. Parmer; (3) neither Thomas Kupec
nor Mr. Morgan committed negligence or malpractice; (4)
Brandon Kupec committed negligence and malpractice in his
representation of Ms. Parmer, however, the jury found Brandon
Kupec and Ms. Parmer each to be 50 percent at fault; (5) Mr.
Brozik and MB Security made false representations, untrue
statements, failed to provide Ms. Parmer necessary and
important information, and fraudulently induced Ms. Parmer
into a series of transactions that made her the owner of
Secure US's assets; (6) neither Thomas Kupec nor Brandon
Kupec committed fraud; (7) Mr. Brozik and MB Security acted
in a willful, wanton, and reckless manner; and (8) neither
Thomas Kupec nor Brandon Kupec acted in a willful, wanton,
and reckless manner. The jury found no liability on any of
Mr. Brozik's conversion claims, real property claims, or
quantum meruit/rent claims against Kourt Security.
respect to damages, the jury awarded a judgment in favor of
Ms. Parmer in the amount of $750, 000 against Mr. Brozik and
MB Security for breach of contract and breach of fiduciary
duty; $750, 000 against Mr. Brozik and MB Security for fraud;
and $200, 000 against Mr. Brozik and MB Security in punitive
damages. The circuit court memorialized the jury's
verdict in a "Trial Order" entered on December 21,
The Post-Trial Motions
Brozik and MB Security filed a post-trial motion in which
they requested that the circuit court set aside the verdict
and grant a new trial. The circuit court denied Mr.
Brozik's and MB Security's motion by order entered on
February 23, 2016. Ms. Parmer also filed a motion seeking a
new trial with respect to her claims against the Kupecs and
Mr. Morgan. The circuit court denied Ms. Parmer's
post-trial motion by order entered on March 15, 2016. Mr.
Brozik/MB Security and Ms. Parmer each appealed to this
Parmer's claims against United Bank and Randall Williams
April of 2014, while her suit against Mr. Brozik, MB
Security, the Kupecs, and Gregory Morgan was pending, Ms.
Parmer filed a separate action against United Bank and its
loan officer, Randall Williams, concerning their role in the
transaction. She alleged claims of negligence, breach of
fiduciary duty, and conspiracy. Specifically, Ms. Parmer
alleged that when she closed on the $2.5 million loan from
United Bank in April of 2012, she was unaware of the SAFE
judgment or that her nephew was the subject of an Internal
Revenue Service investigation. Rather, she alleged that she
believed she was merely signing a note for her nephew to help
him with his debt to the Puskar Trust. Ms. Parmer further
alleged that United Bank was involved in every step of the
alleged scheme that formed the basis of her claims against
Mr. Brozik, MB Security, the Kupecs, and Greg Morgan.
Additionally, she alleged that, without her knowledge, United
Bank loaned an additional $827, 000 to MB Security pursuant
to the management agreement and took as collateral the former
Secure U.S. assets she owned. However, Ms. Parmer admitted
that she signed the management agreement; that she contacted
United Bank to originate the loan; and that Mr. Williams did
not advise her one way or the other about whether to borrow
December 16, 2015,  eighteen days before discovery closed in
her suit against United Bank, Ms. Parmer moved to extend
discovery, which United Bank opposed. Nevertheless, United
Bank made their expert available and Ms. Parmer took the
deposition. Additionally, United Bank's representative
and Mr. Williams agreed to be deposed, but Ms. Parmer
Bank filed a motion for summary judgment on January 6, 2016.
Rather than file a response, Ms. Parmer filed two motions: a
motion to disqualify the presiding circuit court
judge and a motion to reconsider the previous
denial of her motion to amend her complaint to allege fraud.
The Chief Justice denied the disqualification motion by
Administrative Order on January 22, 2016. Ms. Parmer then
timely filed a response to United Bank's summary judgment
order entered on February 12, 2016, the circuit court granted
United Bank's motion for summary judgment. In sum, the
circuit court ruled that (1) Ms. Parmer's negligence
claim failed for a lack of valid legal duty; (2) Ms. Parmer
had no breach of fiduciary duty claim because she did not
allege a breach of contract and United Bank owes no fiduciary
duty to a borrower absent special circumstances not present
in this case; and (3) Ms. Parmer's civil conspiracy claim
failed because she did not present any evidence of wrongdoing
by United Bank. By order entered on February 18, 2016, the
circuit court denied Ms. Parmer's motion to reconsider
the denial of her motion to amend her complaint. Ms. Parmer
appeals both orders to this Court.
first address the assignments of error raised on appeal by
Mr. Brozik and MB Security in Docket No. 16-0292, which are
as follows: (1) that the circuit court erred in denying their
Rule 50(a) motions for judgment as a matter of law and
seeking dismiss[al] [of] Ms. Parmer's fraud claim; (2)
that the circuit court erred in denying their Rule 50(b)
post-trial motion for judgment as a matter of law; (3) that
the circuit court erred in ruling that Mr. Brozik breached a
fiduciary duty; (4) that the circuit court erred in denying
their Rule 50 motions asserting that Ms. Palmer suffered no
damages; (5) that the circuit court erred in denying their
motion to disqualify Judge Wilkes; and (6) that the circuit
court failed to conduct a post-trial analysis of the
jury's punitive damages award as required by Alkire
v. First National Bank of Parsons, 197 W.Va. 122, 475
S.E.2d 122 (1996).
50(a) of the West Virginia Rules of Civil Procedure, which
governs a circuit court's entry of judgment as a matter
of law, provides as follows:
(1)If during a trial by jury a party has been fully heard on
an issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue,
the court may determine the issue against that party and may
grant a motion for judgment as a matter of law against that
party with respect to a claim or defense that cannot under
the controlling law be maintained or defeated without a
favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at
any time before submission of the case to the jury. Such a
motion shall specify the judgment sought and the law and the
facts on which the moving party is entitled to the judgment.
this Court has held that
[i]n ruling . . . on a motion for a judgment notwithstanding
the verdict, . . . the evidence must be viewed in the light
most favorable to the nonmoving party. If on review, the
evidence is shown to be legally insufficient to sustain the
verdict, it is the obligation of this Court to reverse the
circuit court and to order judgment for the appellant.
Syl. Pt. 1, in part, Mildred L.M. v. John O.F., 192
W.Va. 345, 452 S.E.2d 436 (1994). We expanded upon this
standard by holding in syllabus point three of
[t]he granting of a motion for judgment notwithstanding the
verdict is reviewed de novo, which triggers the same
stringent decisional standards that are used by the circuit
courts. While a review of this motion is plenary, it is also
circumscribed because we must review the evidence in a light
most favorable to the nonmoving party.
[w]e 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.
Kizer v. Harper, 211 W.Va. 47, 51, 561 S.E.2d 368,
respect to claims of fraud, this Court has held that the
plaintiff is required to show the following by clear and
"'(1) that the act claimed to be fraudulent was the
act of the defendant or induced by him; (2) that it was
material and false; that plaintiff relied on it and was
justified under the circumstances in relying upon it; and (3)
that he was damaged because he relied on it.' Syl. Pt. 1,
Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66
(1981)." Syllabus Point 2, Muzelak v. King
Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988).
Syl. Pt. 2, in part, Bowling v. Ansted
Chrysler-Plymouth-Dodge, Inc., 188 W.Va. 468, 425 S.E.2d
50(b) of the West Virginia Rules of Civil Procedure, which
governs the renewal of a motion for judgment after trial and
the alternative motion for a new trial, provides as follows:
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 entry of judgment and may
alternatively request a new trial or join a motion for a new
trial under Rule 59. In ruling on a renewed motion, the court
(1) If a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
respect to a motion for judgment as a matter of law pursuant
to Rule 50(b), we have held as follows:
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  is de novo.
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 , 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.
3. "In 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." Syllabus Point 5, Orr v.
Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
Syl. Pts. 1, 2, and 3, Fredeking v. Tyler, 224 W.Va.
1, 680 S.E.2d 16 (2009).
Brozik and MB Security argue that, in her complaint, Ms.
Parmer made nonspecific allegations that Mr. Brozik and
Brandon Kupec caused her to purchase Secure US's assets
without advising her of the existence of a judgment and
"duped" her into signing a management agreement
with MB Security. While Mr. Brozik's post-trial motion
does not reference Rule 50 or Rule 59, Mr. Brozik and MB
Security argue that Ms. Parmer's own testimony showed
that she and Mr. Brozik were close; that she had helped him
before; that she knew exactly what she was doing; that she
personally arranged for the loan from United Bank that she
used to buy the notes from the Puskar Trust; and that she
knew that the notes were to be foreclosed upon. Moreover, in
their fourth assignment of error, Mr. Brozik and MB Security
argue that the jury's compensatory damages award in the
amount of $1.5 million in favor of Ms. Parmer was not
supported by the evidence. Mr. Brozik and MB Security argue
that, as result of her settlement with SAFE and subsequent
agreement to sell the Secure U.S. assets to Kourt Security,
Ms. Parmer lost only $300, 000.
our review of the record in this matter, we find that there
was sufficient evidence of fraud introduced at trial to
sustain the jury's verdict and damages award. Ms. Parmer
testified that she agreed to help Mr. Brozik by obtaining the
loan to help him save his business. She further testified
that she did not want to own any more businesses, and she
told Mr. Brozik as much. In her testimony, she denied knowing
that she would foreclose on the note and become the owner of
the assets. She further testified that when she asked Mr.
Brozik questions about the transaction, Mr. Brozik told her
that Brandon Kupec would take care of everything.
Ms. Parmer testified that she did not know that SAFE had a
judgment or that she may get sued as a result thereof. She
testified that had she known of the SAFE judgment, she would
have ceased the transaction and not signed the papers at the
bank. In fact, the owner of SAFE testified that SAFE sued Ms.
Parmer because he believed Ms. Parmer was in
"cahoots" with her nephew to avoid paying the
judgment. Ms. Parmer's testimony convinced the jury that,
but for Brozik's concealment, Ms. Parmer never would have
been a part of this series of transactions. On appeal, Mr.
Brozik and MB Security ask this Court to usurp the role of
the jury, disregard this evidence, and decide the case
differently. We decline to do so. See Syl. Pt. 3,
Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d
832 (1975) ("It is the peculiar and exclusive province
of the jury to weigh the evidence and resolve questions of
fact when the testimony is conflicting."). Therefore, we
reject Mr. Brozik's and MB Security's first two
assignments of error.
their third assignment of error, Mr. Brozik and MB Security
argue that the circuit court erred in finding that Mr. Brozik
breached a fiduciary duty to Ms. Parmer. "The fiduciary
duty is '[a] duty to act for someone else's benefit,
while subordinating one's personal interests to that of
the other person. It is the highest standard of duty implied
by law[.]' Black's Law Dictionary 625 (6th
ed.1990)." Elmore v. State Farm Mut. Auto. Ins.
Co., 202 W.Va. 430, 435, 504 S.E.2d 893, 898 (1998). The
circuit court made this ruling in granting Ms. Parmer partial
summary judgment. According to Mr. Brozik and MB Security,
the circuit court found that, because Mr. Brozik and Ms.
Parmer signed an agreed order terminating the management
agreement, that Mr. Brozik and MB Security consented to the
award of summary judgment and to the finding that that they
breached the management agreement and breached their
fiduciary duty. However, Mr. Brozik argues that the agreed
order makes no reference to him admitting that a fiduciary
duty existed or that he breached it, but after being directed
by the court that a breach of duty and contract existed, the
jury awarded Ms. Parmer $750, 000.
disagree that the circuit court erred with respect to its
ruling on Ms. Parmer's breach of contract and breach
fiduciary duty claims. The May 6, 2014, "Agreed Order
Granting [Ms. Parmer] Partial Summary Judgment and Injunctive
Relief, " signed by Mr. Brozik's and MB
Security's then-counsel, states, in part, as follows:
4. Since MB Security, LLC has been managing the assets of Ms.
Parmer, the following has occurred:
a. Ms. Parmer has been named as a defendant in a law suit
over the manner in which she became the owner of the former
assets of Secure US;
b. Mitch Brozik has been charged with violation of the
Internal Revenue Code by the United States Attorney's
office and has agreed to plead guilty to the same;
c. MB Security, LLC has failed to pay on a $2.5 million note
owed to United Bank as previously agreed to by the parties;
d. MB Security, LLC has failed to pay the West Virginia State
taxes and tax liens have been recorded.
evidence revealed that Mr. Brozik caused his aunt to become
the owner of his company's assets as part of a scheme to
avoid paying a lawful judgment obtained by a competing
security company, SAFE. He formed another company, MB
Security, in order to use the former Secure U.S. assets and
to continue doing business as usual, without any regard for
the duty owed to his aunt who assisted him. Based on the
agreed findings in the order, we cannot find that the circuit
court erred in ruling that Mr. Brozik breached a fiduciary
duty to Ms. Parmer.
Brozik's and MB Security's fifth assignment of error
is that the circuit court judge should have disqualified
himself. By motion filed on the eve of the jury trial, Mr.
Brozik and MB Security sought the disqualification of the
Honorable Judge Russell Clawges. The motion was prompted by
an exchange between Mr. Brozik's trial counsel, Edward
Kuhout, and the court in which the judge, outside of the
presence of the jury, made statements to the effect that
everyone in the courtroom could see that the defendants were
acting to the disadvantage "of this poor lady, "
referring to Ms. Parmer.
our review, we find no error in Judge Clawges' denial of
the motion to disqualify. The United States Supreme Court has
held that for alleged bias to rise to the level of requiring
recusal, the bias must stem from an extrajudicial source.
U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966).
The Supreme Court has stated that, "[i]f the judge did
not form judgments of the actors in those court-house dramas
called trials, he could never render decisions."
Liteky v. U.S., 510 U.S. 540, 551 (1994). In the
present case, the circuit court denied that it was biased;
rather, the circuit court ruled that its statements were
based upon "its unvarnished perception of the
facts" derived from his presiding over the case for
nearly two years. Accordingly, we find no error.
their final assignment of error, Mr. Brozik and MB Security
argue that the circuit court failed to conduct a post-trial
analysis of the jury's punitive damages award as required
by Alkire. In syllabus point five of
Alkire, we held as follows:
Under our punitive damage jurisprudence, it is imperative
that the amount of the punitive damage award be reviewed in
the first instance by the trial court by applying the model
specified in Syllabus Points 3 and 4 of Garnes v. Fleming
Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991),
and Syllabus Point 15 of TXO Production Corp. v. Alliance
Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992),
aff'd, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366
(1993). Thereafter, and upon petition, this Court will review
the amount of the punitive damage award, applying the
standard specified in Syllabus Point 5 of Garnes.
Brozik and MB Security argue that, in the present case, Ms.
Parmer failed to request a post-trial review of the punitive
damages award. Upon our review, we note that in the
January 14, 2016, hearing on Mr. Brozik's and MB
Security's post-trial motions, the circuit court
determined that, based on case law, punitive damages can be
recovered in a case where the jury finds fraud. The circuit
court then found that, based on the evidence and the finding
of fraud, the jury's award of punitive damages would
stand. We also note that, pursuant to Garnes, we
decline to disturb a punitive damages award of $200, 000,
when accompanied by a compensatory damages award in the
amount of $1.5 million. Therefore, having addressed and
rejected each of the arguments raised on appeal by Mr. Brozik
and MB Security in Docket No. 16-0292, we affirm the Circuit
Court of Monongalia County's December 21, 2015,
"Trial Order" inasmuch as it relates to the
jury's verdict against Mr. Brozik and MB Security, and
its February 23, 2016, order denying Mr. Brozik's and MB
Security's post-trial motions.
now to Docket No. 16-0400, wherein Ms. Parmer appeals the
circuit court's December 21, 2015, "Trial Order,
" and its March 16, 2016, order denying her amended
judgment and/or a new trial,  inasmuch as the jury rejected
her claims against the Kupecs and Gregory Morgan. In her
appeal, Ms. Parmer raises the following assignments of error:
(1) the circuit court should have directed a verdict for Ms.
Parmer as to her claims of professional
negligence/malpractice against each of the lawyer defendants;
(2) the circuit court gave inconsistent and conflicting jury
instructions that misstated the law; (3) the circuit court
gave instructions that were not warranted by the facts or the
applicable law and failed to properly instruct the jury as to
the burden of proof applicable to affirmative defenses; (4)
the circuit court should have given Ms. Parmer's
proffered instructions regarding the Uniform Commercial Code;
(5) the verdict is inconsistent with the facts presented to
the jury; (6) the circuit court should have permitted Ms.
Parmer to question Mr. Brozik regarding his federal tax
evasion conviction and enter evidence regarding the same; (7)
the circuit court should not have permitted the attorney
defendants' expert Steven Thomas to offer opinions
regarding the Uniform Commercial Code; and (8) the circuit
court should have granted Ms. Parmer's motion for partial
summary judgment and thereafter granted her motion for a
directed verdict regarding the issue of whether SAFE's
judgment lien survived the secured party sale. We address
each assignment of error below.
Ms. Parmer argues that the circuit court should have directed
a verdict in her favor with respect to her claims
versus the Kupecs and Gregory Morgan. Ms. Parmer essentially
argues that she was entitled to a directed verdict because
she called an expert witness, Robert Davis, Esq., to testify
that these three defendants breached duties owed to her, and
further that the attorney defendants failed to call an expert
to rebut those opinions. She filed three post-trial motions,
in which she argued for a judgment as a matter of law
pursuant to Rule 50(b); to alter or amend judgment pursuant
to Rule 59(e); and for a new trial pursuant to Rule 59(a)(1),
noted above in our discussion of Mr. Brozik's and MB
Security's Rule 50(b) motion,
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
Syl. Pt. 2, in part, Fredeking v. Tyler, 224 W.Va.
1, 680 S.E.2d 16 (2009). Additionally, "issues not
raised in an initial Rule 50(a) motion may not be asserted in
a subsequent post-verdict motion for judgment as a matter of
law under Rule 50(b)." Franklin D. Cleckley, Robin J.
Davis, & Louis J. Palmer, Jr., Litigation Handbook on
West Virginia Rules of Civil Procedure § 50(b), at
1114 (4th ed. 2014) (citations omitted).
present case, despite calling her motion a
"renewed" motion for judgment as a matter of law,
the circuit court correctly determined, based on its review
of the transcript, that Ms. Parmer failed to make a Rule
50(a) motion before the case went to the jury, and thus, she
was not entitled to pursue a Rule 50(b) motion. Accordingly,
we find no error in the denial of Ms. Parmer's Rule 50(b)
respect to our review of a motion to alter or amend a
judgment pursuant to Rule 59(e), we have held that
[t]he standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W.Va.
R. Civ. P. 59(e), is the same standard that would apply to
the underlying judgment upon which the motion is based and
from which the appeal to this Court is filed.
Syl. Pt. 1, Wickland v. Am. Travellers Life Ins.
Co., 204 W.Va. 430, 513 S.E.2d 657 (1998). Furthermore,
[a] motion under Rule 59(e) of the West Virginia Rules of
Civil Procedure should be granted where: (1) there is an
intervening change in controlling law; (2) new evidence not
previously available comes to light; (3) it becomes necessary
to remedy a clear error of law or (4) to prevent obvious
Syl. Pt. 2, Mey v. Pep Boys-Manny, Moe & Jack,
228 W.Va. 48, 717 S.E.2d 235 (2011).
present case, Ms. Parmer identified no intervening change in
controlling law, new evidence, clear error of law, or obvious
injustice as a result of the verdict. Therefore, her Rule
59(e) motion was properly denied by the circuit court.
with respect to a motion for a new trial under Rule 59(a), we
have held as follows:
"A motion for a new trial is governed by a different
standard than a motion for a directed verdict. 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. 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 re State Public Building Asbestos
Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994),
cert. denied sub nom., W.R. Grace & Co. v. West
Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857
Syl. Pt. 2, Sayre v. Roop, 205 W.Va. 193, 517 S.E.2d
290 (1999). Additionally,
"'[t]he ruling of a trial court in granting or
denying a motion for a new trial is entitled to great respect
and weight, [and] the trial court's ruling will be
reversed on appeal [only] when it is clear that the trial
court has acted under some misapprehension of the law or the
evidence.' Syl. pt. 4, in part, Sanders v.
Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218
(1976)." Syllabus point 2, Estep v. Mike Ferrell
Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 672 S.E.2d
Syl. Pt. 2, Peters v. Rivers Edge Min., Inc., 224
W.Va. 160, 680 S.E.2d 791 (2009).
noted above, Ms. Parmer's argument is based upon the
notion that the circuit court was obligated to grant her
post-trial motions because she presented the testimony of an
expert to support her claims against the attorney defendants,
and the attorney defendants failed to present expert
testimony in rebuttal. However, contrary to Ms. Parmer's
argument, there is no law that bounds a circuit court to
grant her motion in these circumstances. In fact, we have
long held as follows with respect to expert testimony:
"The testimony of expert witnesses on an issue is not
exclusive, and does not necessarily destroy the force or
credibility of other testimony. The jury has a right to weigh
the testimony of all witnesses, experts and otherwise; and
the same rule applies as to the weight and credibility of
such testimony." Syl. pt. 2, Webb v. Chesapeake
& Ohio Railway Company, 105 W.Va. 555, 144 S.E. 100
Syl. Pt. 2, Papenhaus v. Combs, 170 W.Va. 211, 292
S.E.2d 621 (1982).
with this long-standing precedent, the circuit court
instructed the jury that "[y]ou may give expert
testimony whatever weight you think it deserves, or you may
give it no weight." The jury heard all of the evidence
and simply did not adopt the opinions of Ms. Parmer's
expert witness that the attorney defendants breached their
duties to her. Clearly, the evidence at trial was conflicting
with respect to Ms. Parmer's claims against the attorney
defendants, despite the fact that the attorney defendants did
not rely on expert testimony in their defense. As we noted
above in our discussion of Mr. Brozik's and MB
Security's appeal, "[i]t is the peculiar and
exclusive province of the jury to weigh the evidence and to
resolve questions of fact when the testimony is
conflicting." Syl. Pt. 3, Long, supra.
Therefore, we find no error in the circuit court's denial
of Ms. Parmer's motion for judgment notwithstanding the
verdict, motion to alter or amend judgment, or her motion for
a new trial.
we address Ms. Parmer's second and third assignments of
error together. Ms. Parmer's second assignment of error
is that the circuit court gave inconsistent and conflicting
jury instructions that misstated the law with regard to
comparative fault. Ms. Parmer points to a part of the
instruction that stated, on the one hand, that she would not
be barred from recovery unless her negligence "equals or
exceeds fifty percent of the total negligence, " and
then stated, on the other hand, that any recovery would be
reduced if the jury attributed fault to her that "does
not exceed fifty percent." Her third assignment of error
is that there was insufficient evidence to warrant the
circuit court giving the comparative instruction at all. We
have held that
"[t]he formulation of jury instructions is within the
broad discretion of a circuit court, and a circuit
court's giving of an instruction is reviewed under an
abuse of discretion standard. A verdict should not be
disturbed based on the formulation of the language of the
jury instructions so long as the instructions given as a
whole are accurate and fair to both parties." Syllabus
Point 6, Tennant v. Marion Health Care Foundation,
Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
Syl. Pt. 1, Walters v. Fruth Pharmacy, Inc., 196
W.Va. 364, 472 S.E.2d 810 (1996).
our review, we reject Ms. Parmer's
arguments. Ms. Parmer singles out only a portion of
the instruction to advance her point. When one examines the
entire charge, it is clear that the jury was properly
instructed -- multiple times -- that Ms. Parmer was not
barred from recovery unless her percentage of negligence
equaled or exceeded fifty percent of the total negligence
that caused the harm she alleged. This Court has held as
"A trial court's instructions to the jury must be a
correct statement of the law and supported by the evidence.
Jury instructions are reviewed by determining whether the
charge, reviewed as a whole, sufficiently instructed the jury
so they understood the issues involved and were not misle[d]
by the law. A jury instruction cannot be dissected on appeal;
instead, the entire instruction is looked at when determining
its accuracy. A trial court, therefore, has broad discretion
in formulating its charge to the jury, as long as the charge
accurately reflects the law. Deference is given to a trial
court's discretion concerning the specific wording of the
instruction, and the precise extent and character of any
specific instruction will be reviewed only for an abuse of
discretion." Syllabus point 4, State v.
Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Syl. Pt. 2, Reynolds v. City Hosp., Inc., 207 W.Va.
101, 529 S.E.2d 341 (2000). When reviewed as a whole, the
circuit court's comparative fault instruction was a
correct statement of the law; from the verdict form, we see
no evidence that the jury was confused. As for Ms.
Parmer's argument that the circuit court should not have
even given the instruction, her own trial testimony negates
her argument. She admitted that she chose to enter into the
transactions on her own, despite Brandon Kupec's
suggestion that she consult her own attorney. Thus, we reject
Ms. Parmer's second and third assignments of error.
Parmer next argues in her fourth assignment of error that the
circuit court improperly refused her instruction regarding
the Uniform Commercial Code ("UCC"). Specifically,
the circuit court instructed the jury that "[e]very
aspect of a disposition of collateral must be commercially
reasonable. . . . The term commercially reasonable is a legal
term of art throughout the UCC. It is up to you, the jury, to
determine if this sale was conducted in a commercially
reasonably manner." Ms. Parmer states that the UCC
defines "commercially reasonable" as "the
usual manner in any recognized market." However, she
argues that the court refused to give her proposed
instruction on this definition, as well as her instruction
that a secured party sale conducted with the intent to harm
present or future creditors is fraudulent. She contends that
the undisputed evidence was that the sale was conducted to
extinguish SAFE's lien and allow business to go on as
usual for Mr. Brozik.
attorney defendants objected to Ms. Parmer's proffered
definition of commercially reasonable because
"recognized market" applies to markets with
standardized price quotations for products that are fungible,
such as stock exchanges. Mr. Morgan correctly argues that
there was no standardized price for the Secure U.S. customer
accounts. Rather, the testimony demonstrated that the price
would depend on who was buying them and for what purpose.
Therefore, Ms. Parmer's requested instruction on the
definition of commercially reasonable was contrary to the
facts of the case, and was properly rejected by the circuit
court. Moreover, Ms. Parmer did not plead that the lawyer
defendants violated Uniform Fraudulent Transfers Act
("UFTA"), codified, in part, in West Virginia Code
§ 40-1A-4. Likewise, SAFE did assert a UFTA claim
against Ms. Parmer in its suit. Therefore, there was no basis
for the circuit court to instruct the jury on the intent
behind the sale. "A trial court's instructions to
the jury must be a correct statement of the law and supported
by the evidence." Syl. Pt. 2, in part, Reynolds,
Ms. Parmer argues that the jury's verdict is internally
inconsistent with the evidence. Ms. Parmer contends that the
jury's determination that Mr. Brozik defrauded her is
tantamount to a finding that she was not fully aware of the
details surrounding the series of transactions conducted on
her behalf, and that such a finding necessarily precludes the
finding that the attorney defendants satisfied their
professional obligations to her or that she was comparatively
disagree. This Court has held that
"[w]hen jury verdicts answering several questions have
no logical internal consistency and do not comport with
instructions, they will be reversed and the cause remanded
for a new trial." Syl. Pt. 1, Reynolds v. Pardee
& Curtin Lumber Co., 172 W.Va. 804, 310 S.E.2d 870
(1983). In determining whether jury verdicts are
inconsistent, the Court has observed that with respect to
inconsistent verdict, "such inconsistency must appear
after excluding every reasonable conclusion that would
authorize the verdict." Prager v. City of
Wheeling, 91 W.Va. 597, 599, 114 S.E. 155, 156 (1922).
Modular Bldg. Consultants of West Virginia, Inc. v.
Poerio, Inc., 235 W.Va. 474, 479, 774 S.E.2d 555, 560
(2015). Ms. Parmer's argument ignores that there were
various parties involved in the series of transactions, all
of whom had different roles and obligations. Stated simply,
there is nothing inconsistent about the jury finding that Mr.
Brozik defrauded his aunt and breached duties owed to her,
but that Mr. Morgan and Thomas Kupec did not. As for Brandon
Kupec, the jury found that he was negligent, but that Ms.
Parmer's own negligence negated her recovery. Moreover,
the fact that the jury found Brandon Kupec negligent
undermines Ms. Parmer's argument that the verdict is
internally inconsistent. Accordingly, we find no error.
sixth assignment of error, Ms. Parmer argues that the circuit
court erred by allowing Steven Thomas to testify as an expert
on behalf of the attorney defendants regarding the UCC. Ms.
Parmer's argument is based upon the circuit court's
pre-trial ruling that prohibited attorney experts from
testifying as to the substantive law, but that they would be
permitted to testify to their opinions as to the application
of the law to the facts of the case. "The admissibility
of testimony by an expert witness is a matter within the
sound discretion of the trial court, and the trial
court's decision will not be reversed unless it is
clearly wrong." Syl. Pt. 1, Watson v. Inco Alloys
Int'l, Inc., 209 W.Va. 234, 545 S.E.2d 294 (2001)
our review, we find that Mr. Thomas testified consistent with
the court's ruling. Mr. Thomas testified about his
experience with conducting foreclosure sales, and that the
foreclosure sale in the present case was conducted properly.
As Mr. Morgan correctly argues, it was Ms. Parmer's
counsel who cross-examined Mr. Thomas by asking Mr. Thomas
about various sections of the West Virginia Code, which
necessitated Mr. Morgan's counsel to have Mr. Thomas
clarify his testimony. Additionally, it is worth noting that
the circuit court afforded Ms. Parmer's attorney expert,
Robert Davis, considerable latitude when he testified about
the application of the Rules of Professional Conduct in light
of Ms. Parmer's claims against the attorney defendants.
Accordingly, we reject Ms. Parmer's sixth assignment of
Parmer's seventh assignment of error is that the circuit
court erred by failing to rule in her favor, as a matter of
law, that the SAFE judgment lien on the Secure U.S. assets
survived the secured party sale. Ms. Parmer asserts that it
was undisputed that Mr. Morgan planned to terminate the
secured party sale if an individual bid in excess of $4
million, which was his maximum bidding authority for Ms.
Parmer. Ms. Parmer insinuated below, and continues to do so
on appeal, that the sale was fraudulent because the outcome
was predetermined - that she would become the owner of the
Secure U.S. assets regardless of the other bidders, or the
sale would be cancelled. Ms. Parmer concludes by arguing that
the transferee in fraudulent sale takes the property subject
to the lien. See W.Va. Code §§ 46-9-617(b)
and 46-9-617(c)(3). We review the circuit court's summary
judgment rulings de novo. See Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
our review, we reject Ms. Parmer's argument because it is
based on a false premise. A closer review of Mr. Morgan's
testimony reveals that he did not intend to terminate the
sale if someone outbid Ms. Parmer; rather, his testimony was
that he would suspend the sale for only long enough to
determine whether he should increase the bid on her behalf.
Accordingly, we find no error in the failure of the circuit
court to grant partial summary judgment in favor of Ms.
Parmer on the issue of whether the SAFE judgment lien
survived the secured party sale.
Parmer's final assignment of error centers on the circuit
court's alleged failure to properly address the conduct
of Mr. Brozik and his counsel, Edward
Kuhout. Ms. Parmer contends that the court
failed to adequately resolve discovery disputes or to
sanction Mr. Brozik or his counsel for their conduct.
However, from our review of the record, we fail to identify
any specific failure by the circuit court that deprived Ms.
Parmer of due process. Ms. Parmer also argues that the
circuit court permitted the matter to be unnecessarily
complicated by allowing Mr. Brozik and MB Security to file a
counterclaim and third-party complaint, and by consolidating
with this case a separate suit filed by Mr. Brozik and MB
Security. As the circuit court correctly noted, Ms. Parmer
objected to all efforts below by the attorney defendants to
bifurcate the various claims, and thus, cannot be heard to
now complain about the alleged complexity of the litigation
now on appeal. Accordingly, having addressed and rejected
each of Ms. Parmer's assignments of error in Docket No.
16-0400, we affirm the circuit court's denial of her
now to Ms. Parmer's appeal of the circuit court's
order granting United Bank's motion for summary judgment
and its order denying her motion to reconsider the denial of
her motion to amend her complaint. In this appeal, Ms. Parmer
argues that (1) she should have been permitted to amend her
complaint, pursuant to Rule 15(a) of the West Virginia Rules
of Civil Procedure, because United Bank had yet to file a
responsive pleading; and (2) genuine issues of material fact
existed, which should have precluded the granting of summary
judgment. Upon our review, we find that neither of
Ms. Parmer's assignments of error have any merit.
Parmer's first contention is that the circuit court erred
in denying her motion to reconsider the denial of her motion
to amend her complaint. A bit of additional procedural
background is necessary. Ms. Parmer filed the present suit on
April 21, 2014. She indicates that the parties stipulated
that United Bank would have until June 23, 2014, to
"answer, move, or otherwise respond." On June 23,
2014, United Bank filed a motion to dismiss, pursuant to Rule
12(b)(6) of the West Virginia Rules of Civil Procedure, in
which it argued that Ms. Parmer's claims were barred by
the two-year statute of limitations. On February
27, 2015, Ms. Parmer moved to amend her complaint to allege,
among other things, a "continuing tort" of fraud.
The circuit court denied United Bank's motion to dismiss
on March 18, 2015. On April 2, 2015, the circuit court denied
Ms. Parmer's motion to amend her complaint. On April 3,
2015, United Bank filed its answer.
15(a) of the West Virginia Rules of Civil Procedure states,
in part, that "[a] party may amend the party's
pleading once as a matter of course at any time before a
responsive pleading is served." Ms. Parmer argues that
United Bank's Rule 12(b)(6) motion was not included as
part of a responsive pleading; rather, it was filed as a
separate motion. Therefore, Ms. Parmer contends that she had
the right to amend her complaint because no responsive
pleading had been filed when she requested the amendment.
careful review of the circumstances surrounding Ms.
Parmer's motion below, we find no error in the circuit
court's denial of her motion to amend her complaint or in
the denial of reconsideration thereof. This Court has held as
A trial court is vested with a sound discretion in granting
or refusing leave to amend pleadings in civil actions. Leave
to amend should be freely given when justice so requires, but
the action of a trial court in refusing to grant leave to
amend a pleading will not be regarded as reversible error in
the absence of a showing of an abuse of the trial court's
discretion in ruling upon a motion for leave to amend.
Syl. Pt. 6, Perdue v. S. J. Groves & Sons Co.,
152 W.Va. 222, 161 S.E.2d 250 (1968).
present case, the parties agreed to extend the time for
United Bank to "answer, move, or otherwise respond"
to the complaint. United Bank then timely filed a motion to
dismiss, which was fully briefed by the parties, including
the filing of proposed findings of fact and conclusions of
law. Then, after the case had been pending for almost a year,
Ms. Palmer sought to amend her complaint to allege a
"continuing tort." It appears clear to this Court
that the basis for Ms. Parmer's proposed amendment was
simply to avoid the possibility of her suit being dismissed
as barred by the statute of limitations. However, once the
circuit court denied United Bank's motion, the amendment
became unnecessary because, as the court correctly
determined, "all factual allegations raised in the
proposed amended complaint were capable of being addressed in
discovery." The circuit court was correct to rule
that Ms. Parmer "had failed to show any compelling
reason to amend the Complaint and had failed to offer any
valid reason for delay in seeking the amendment." As for
Ms. Parmer's motion for reconsideration of that ruling,
the circuit court properly determined that "granting the
motion at this late date would be futile, unduly prejudicial
to [United Bank], a waste of judicial resources, and would
not serve the interests of justice." Accordingly, we
find no abuse of discretion by the circuit court in its
February 18, 2016, "Order Denying Plaintiff's Motion
to Reconsider Court's Denial of Plaintiff's Motion to
next argues that the circuit court erred in granting United
Bank's motion for summary
judgment. To summarize, Ms. Parmer argues that the
verdict in her suit against Mr. Brozik, MB Security, and the
attorney defendants should have no bearing on the present
suit against United Bank, i.e., her claims are not barred by
collateral estoppel; that there were "special
circumstances" that existed between Ms. Parmer and
United Bank that should have created a duty on United
Bank's behalf to protect Ms. Parmer from harm in the
underlying loan transaction; that there were issues of fact
regarding Ms. Parmer's conspiracy claim; that United Bank
had conflicts of interest; that there were issues of fact as
to whether United fraudulently induced Ms. Parmer into the
loan transaction by making false representations about Mr.
Brozik's payment history; and that under the management
agreement between Ms. Parmer and Mr. Brozik, United continued
to loan over $800, 000 to Mr. Brozik using the former Secure
U.S. assets as collateral, while subordinating Ms.
Parmer's security interests in those assets to United
respect to our review of the grant of summary judgment, this
Court has held as follows:
1. A circuit court's entry of summary judgment is
reviewed de novo.
2. "'A motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.' Syllabus Point 3,
Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)."
Syllabus Point 1, Andrick v. Town of Buckhannon, 187
W.Va. 706, 421 S.E.2d 247 (1992).
3. The circuit court's function at the summary judgment
stage is not to weigh the evidence and determine the truth of
the matter, but is to determine whether there is a genuine
issue for trial.
4. Summary judgment is appropriate where the record taken as
a whole could not lead a rational trier of fact to find for
the nonmoving party, such as where the nonmoving party has
failed to make a sufficient showing on an essential element
of the case that it has the burden to prove.
Syl. Pts. 1, 2, 3 and 4, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994). Upon our review, we find that
United Bank was entitled to summary judgment. We address Ms.
Parmer's contentions in the context of her three claims:
negligence, breach of fiduciary duty, and conspiracy.
without determining whether United Bank is entitled to invoke
the doctrine of collateral estoppel, we nonetheless find that
her negligence claims fail as a matter of law because she has
failed to establish that United Bank owed any duty to her.
Under West Virginia law, a bank has no implied duty of good
faith and fair dealing absent a breach of contract claim.
See Evans v. United Bank, Inc., 235 W.Va. 619, 775
S.E.2d 500 (2015). Ms. Parmer did not allege a breach of
contract; therefore, her negligence claim must fail for lack
of a duty. See Syl. Pt. 1, Parsley v. Gen.
Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703
(1981) ("In order to establish a prima facie case of
negligence in West Virginia, it must be shown that the
defendant has been guilty of some act or omission in
violation of a duty owed to the plaintiff. No action for
negligence will lie without a duty broken.").
Ms. Parmer's breach of fiduciary duty claim, the circuit
court concluded below that Ms. Parmer seeks to cast United
Bank and Mr. Williams as her advisors, similar to an attorney
who provides counsel to a client. However, she cites to no
binding West Virginia authority for the existence of such a
duty. In this case, United Bank acted as nothing more than a
lender to Ms. Parmer, who admitted that she sought to help
her nephew and "let her heart rule her head."
Additionally, there are no "special circumstances"
in this case that would create such a duty. Ms. Parmer
admitted that she asked Mr. Williams about assisting Mr.
Brozik, but that Mr. Williams did not advise her one way or
the other. She further admitted knowing that Mr. Brozik owed
money to the Puskar Trust, which is why she agreed to help
him. From the record, it appears clear to this Court that the
issues that Ms. Parmer encountered subsequent to obtaining
the $2.5 million loan were not attributable to United Bank.
Accordingly, Ms. Parmer's breach of fiduciary duty claim
fails as a matter of law.
Ms. Parmer alleged that United Bank conspired with Mr. Brozik
and Brandon Kupec to cause her the harm for which she sought
recovery. We have held as follows regarding a civil
A civil conspiracy is a combination of two or more persons by
concerted action to accomplish an unlawful purpose or to
accomplish some purpose, not in itself unlawful, by unlawful
means. The cause of action is not created by the conspiracy
but by the wrongful acts done by the defendants to the injury
of the plaintiff.
A civil conspiracy is not a per se, stand-alone
cause of action; it is instead a legal doctrine under which
liability for a tort may be imposed on people who did not
actually commit a tort themselves but who shared a common
plan for its commission with the actual perpetrator(s).
Syl. Pts. 8 and 9, Dunn v. Rockwell, 225 W.Va. 43,
689 S.E.2d 255 (2009).
present case, despite almost two years of discovery, Ms.
Parmer failed to produce any evidence that United Bank or Mr.
Williams acted unlawfully. From the record, it is clear that
Ms. Parmer contacted the bank to obtain a loan to help Mr.
Brozik, and that Mr. Williams assisted her in doing so. There
is no evidence that, to United Bank, this transaction was
anything other than a routine loan. As for United Bank's
subsequent loans to MB Security, these loans were made
pursuant to the management agreement that Ms. Parmer admits
she negotiated and signed with Mr. Brozik and Brandon Kupec.
Ms. Parmer failed to present evidence of any conspiracy in
this regard; therefore, her conspiracy claim fails as a
matter of law.
foregoing reasons, we affirm the Circuit Court of Monongalia
County's "Trial Order, " entered on December
21, 2015; its "Order Denying Brozik and MB Security
[sic] Post Trial Motions, " entered on February 23,
2016; its order denying Ms. Parmer's motion for amended
judgment and/or for a new trial, entered on March 15, 2016;
its order granting United Bank's motion for summary
judgment, entered on February 12, 2016; and its order denying
Ms. Parmer's motion to reconsider the denial of her
motion to amend her complaint, entered on February 18, 2016.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Margaret L. Workman Justice Menis E. Ketchum Justice
Elizabeth D. Walker
DISSENTING: Justice Robin Jean Davis.
 Secure U.S. provided residential and
commercial fire and security services in North Central West
 Mr. Brozik also received financial
assistance in the past from Milan Puskar, who was Mr.
Brozik's godfather. The Parmer, Brozik, and Puskar
families came to the United States from the same region of
Serbia and remained very close.
In the early 2000s, Secure U.S. filed a
civil action against SAFE, another security company, in the
United States District Court for the Southern District of
West Virginia. Secure U.S. and SAFE were in a dispute over
the rights to a third company's customer accounts and
recurring monthly income therefrom. SAFE asserted a
counterclaim against Secure US. In November of 2010, the
district court awarded judgment in favor of SAFE on Secure
US's claim and awarded SAFE $1.132 million in its
counterclaim against Secure US. SAFE later registered its
judgment against Secure U.S. in the Northern District and
began efforts in a miscellaneous action to execute the
judgment against Secure US's assets, including its
customer accounts. The Kupecs took over representation of
Secure U.S. in the SAFE matter during the miscellaneous
action. It appears that the SAFE matter was the driving force
behind the present litigation.
 In 2015, Mr. Brozik initiated a
separate civil action against Kourt Security Partners and
Boyanna, LLC, which the circuit court consolidated with Civil
Action 13-C-651. That suit was styled Brozik Rentals,
LLC, and Mitchell Brozik v. Kourt Security Partners, LLC, and
Boyanna, LLC, Circuit Court of Monongalia County Civil
Action No. 15-C-3.
 See footnote 3,
 During their communications, Ms.
Parmer indicated to Brandon Kupec that she had counsel in her
home state of Pennsylvania, and Brandon Kupec advised her to
consult with him. However, Ms. Parmer did not seek the advice
of her counsel at any stage in these transactions.
Additionally, it appears undisputed that Thomas Kupec never
met or spoke with Ms. Parmer.
 Ms. Parmer's present counsel also
represented her in the SAFE suit. Additionally, the Kupecs
and Mr. Morgan state that Ms. Parmer subsequently sold the
former Secure U.S. assets to Kourt Security, owned by Patrick
Egan, for $3.2 million, and $1.132 million of those proceeds
went to pay SAFE to discharge the liability she voluntarily
agreed to accept. In the present litigation, Parmer sought to
recover, among other sums, the $1.132 million she paid to
 The jury returned its verdict in Ms.
Parmer's suit against Mr. Brozik, MB Security, the
Kupecs, and Gregory Morgan on December 4, 2015.
 The Honorable Christopher C. Wilkes
presided over the case in the Business Court Division of the
Circuit Court of Monongalia County.
 The record also fails to reflect
that Mr. Brozik and MB Security requested such a
The order is titled "Order
Denying Plaintiff's Renewed Motion Pursuant to Rule 50 of
the West Virginia Rules of Civil Procedure and Motion For
Amended Judgment and/or for New Trial Pursuant to Rule 59 of
the West Virginia Rules of Civil Procedure, and, Order
Denying Plaintiff's Supplemental Motion for Directed
Verdict Pursuant to Rule 50 of the West Virginia Rules of
Civil Procedure and/or Motion for Amended Judgment/New Trial
Pursuant to Rule 59 of the West Virginia Rules of Civil
 Ms. Parmer refers to her motion for
a directed verdict; however, pursuant to Rule 50, the proper
motion is for a judgment as a matter of law.
Mr. Morgan correctly points out that
Ms. Parmer failed to specifically object to the wording of
the comparative fault instruction as being inconsistent or
incorrect. Therefore, she has waived her right to assign
error to the instruction on appeal. See Shaw v.
Perfetti, 147 W.Va. 87, 125 S.E.2d 778 (1962).
Nevertheless, we will examine the merits of her
 Mr. Brozik and MB Security went
through several attorneys in the proceeding below. The first
was Andrew Fusco, who withdrew. They were then represented by
Trent Redman and Michael Payne, who also withdrew.
Ultimately, Mr. Brozik and MB Security were represented by
Edward Kuhout at trial. They are now represented by William
J. Leon on appeal. For reasons unrelated to the present case,
this Court annulled Mr. Kuhout's law license by opinion
issued on November 15, 2016.
 Ms. Parmer raises a third assignment
of error - that the circuit court erred in denying her motion
to amend the scheduling order. However, she fails to provide
any argument in support thereof. Accordingly, we decline to
address the issue. See W.Va. R. App. Proc. 10(c)(7)
(permitting this Court to "disregard errors that are not
adequately supported by specific references to the record on
 United Bank's motion was based
on the fact that the closing for Ms. Parmer's loan
occurred on April 19, 2012, but that she did not file the
instant suit until April 21, 2014.
 According to the order, Ms.
Parmer's counsel conceded that he focused his efforts on
pursuing the other defendants involved in the same
 The circuit court's order
granting summary judgment preceded its order denying
reconsideration of the denial of Ms. Parmer's motion to
amend her complaint by six days. However, the circuit court
noted in the latter order that it considered the
reconsideration motion prior to granting summary judgment,
and found that the reconsideration motion "could not
remedy the fatal defects presented in [Ms. Parmer's]
case, " which entitled United Bank to summary