915 A.2d 270 (Vt. 2006), 2005-106, Montgomery v. Devoid

Docket Nº:2005-106
Citation:915 A.2d 270, 181 Vt. 154, 2006 VT 127
Opinion Judge:REIBER, C.J.
Party Name:Thomas Montgomery v. Carl L. Devoid, Jr., Carl L. Devoid, Sr., Wayne M. Devoid, Leonard R. Devoid, Elizabeth M. Witham and the Leonard R. Devoid Revocable Trust
Attorney:Alan A. Bjerke of Bauer, Gravel, Farnham, Nuovo, Parker & Lang, Burlington, for Plaintiff-Appellant. Richard R. Goldsborough of Perry, Schmucker & Goldsborough, PLLC, South Burlington, for Defendant-Appellee Carl Devoid, Sr. Susan J. Flynn of Clark, Long, Werner & Flynn, P.C., Burlington, for Def...
Judge Panel:PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
Case Date:November 22, 2006
Court:Supreme Court of Vermont

Page 270

915 A.2d 270 (Vt. 2006)

181 Vt. 154, 2006 VT 127

Thomas Montgomery


Carl L. Devoid, Jr., Carl L. Devoid, Sr., Wayne M. Devoid, Leonard R. Devoid, Elizabeth M. Witham and the Leonard R. Devoid Revocable Trust

No. 2005-106

Supreme Court of Vermont

November 22, 2006

As Corrected February 15, 2007

Page 271

On Appeal from Chittenden Superior Court. Richard W. Norton, J.

Alan A. Bjerke of Bauer, Gravel, Farnham, Nuovo, Parker & Lang, Burlington, for Plaintiff-Appellant.

Richard R. Goldsborough of Perry, Schmucker & Goldsborough, PLLC, South Burlington, for Defendant-Appellee Carl Devoid, Sr.

Susan J. Flynn of Clark, Long, Werner & Flynn, P.C., Burlington, for Defendants-Appellees Leonard R. Devoid and the Leonard R. Devoid Revocable Trust.

Christopher L. Davis, Kevin E. Brown and Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellee Elizabeth M. Witham.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.


Page 272

[181 Vt. 156] REIBER, C.J.

[¶1] Following the theft of approximately $ 80,000 in cash from his residence in Underhill, Vermont, plaintiff Thomas Montgomery filed a civil suit to recover the money and named as defendants - in addition to the alleged thief, Carl Devoid, Jr. - several of Carl Jr.'s relatives. Montgomery's primary allegation was that each of the defendants was liable for the conversion of the stolen funds. After considering cross-motions for summary judgment on claims of conversion, fraud, and conspiracy, the Chittenden Superior Court determined that only some of the defendants were liable. Montgomery appealed, and one of the defendants cross-appealed. We affirm in part and reverse in part.

[¶2] The defendants named in the complaint were: Carl Devoid, Jr., the alleged thief; Wayne Devoid, his brother; Carl Devoid, Sr., his father; Leonard Devoid, his now-deceased uncle; Elizabeth Witham, his uncle's partner; and the Leonard Devoid Revocable Trust. On May 20, 2002, Carl Jr. allegedly broke into Montgomery's home and stole, among other things, $ 80,000 in cash. The next day, Carl Sr. appeared at Witham and Leonard's home and asked them to help him conceal from the Internal Revenue Service money that he said he had earned doing a big siding and roofing job. According to Witham's deposition testimony from the following year, Carl Sr. suggested that he give the couple $ 10,000 in cash and, in exchange, they would write him two separate checks for $ 5,000, which he would deposit in his account and use to pay off a car loan. Witham testified that it " didn't seem wrong to be able to take cash and put it into our accounts, as long as he had worked for it." Accordingly, Witham and Leonard took the money from Carl Sr. and wrote out the checks to him that day. Carl Sr. later used the money to pay off the loan.

[¶3] Two months later, on July 18, in response to a police investigation, Wayne Devoid told detectives that his brother, Carl Jr., had robbed the Montgomery home, that he had helped his brother count the money the same day as the robbery, and that Carl Jr. had purchased a number of expensive items, including two cars,

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with the stolen money. Records from the Department of Motor Vehicles revealed that Carl Jr. purchased one vehicle on the day of the burglary and one the day after. A further investigation and search of Carl Jr.'s residence the following week corroborated the details of Wayne's story and revealed recent purchases of four vehicles. The [181 Vt. 157] police also recovered some of Carl Jr.'s property from his father, Carl Sr., who had removed it from Carl Jr.'s residence shortly before the police executed their search warrant. Carl Sr. admitted to the detective that he had taken some property out of Carl Jr.'s apartment over the weekend at Carl Jr.'s request. There was also evidence that Carl Sr. had stored at least two of the vehicles on his brother Leonard's property.

[¶4] Wayne also told detectives that Carl Jr. had paid off his father's car loan. The Ford Motor Credit Company, which financed Carl Sr.'s 1999 Ford van, reported that on July 3, 2002, it received a payment of $ 10,931 in full satisfaction of the lien on the van. The police then interviewed Carl Sr., who told them that he had paid off the car loan with a loan from his brother, Leonard Devoid, and Leonard's partner, Elizabeth Witham.

[¶5] According to Witham's deposition testimony, Witham and Leonard found out about the source of the money at some point between May 2002, when they deposited the cash and wrote the checks, and September 2002, when the police came to interview them. Witham testified that " one time while I was [gone] Carl Sr. came to our house and talked to Len and . . . Len questioned Carl and found out where that money came from. And Len told me that night." Upon hearing that information from Leonard, Witham contacted Carl Sr. and told him that she " was angry that he had put us in the middle. And we didn't know how to get out of it without getting him in trouble." Also, at some point during that summer, Leonard agreed to allow Carl Sr. to store some vehicles on his property.

[¶6] On September 23, 2002, a detective came to Leonard and Witham's home to interview them. Fearing that Carl Sr. was in a lot of trouble and would go to jail if they told the truth, they stated that they had given him a $ 10,000 loan from cash they had saved for a vacation they never took. A later search of Witham and Leonard's bank accounts revealed that, during the week of May 20, each had made a $ 5000 cash deposit into their respective accounts and each had written a check to Carl Sr. for the same amount. The detective also informed Leonard that police had removed the vehicles Carl Sr. had stored at Leonard's property because they had been purchased with stolen money.

[¶7] On January 10, 2003, Montgomery filed suit against Carl Devoid, Jr., Carl Devoid, Sr., Wayne Devoid, Leonard Devoid, Elizabeth Witham, and Leonard Devoid as Trustee of the Leonard [181 Vt. 158] Devoid Revocable Trust, which had been established on May 17, 2002 and contained many of Leonard's and Witham's assets. On February 15, 2003, Leonard passed away, and he was never deposed. Carl Jr., Carl Sr, and Wayne Devoid all refused to answer most of the substantive questions at their respective depositions. Carl Sr. and Wayne cited the Fifth Amendment privilege against self-incrimination. In March 2004, Montgomery moved for summary judgment against all defendants, and Carl Sr., the Leonard Trust, and Witham each filed cross-motions for summary judgment.

[¶8] The trial court issued a written order on February 16, 2005, concluding that: (1) neither Witham, Leonard, nor the Trust was liable for conversion; (2) Carl Sr. was liable for conversion as a matter of

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law, but only for $ 10,000 rather than the entire $ 80,000; (3) Carl Jr. and Wayne were liable for the conversion of the full $ 80,000. On appeal, Montgomery claims that the court erred in not assigning any liability to Witham, Leonard, and the Trust, and in restricting Carl Sr.'s liability to only $ 10,000. According to Montgomery, each of the defendants should be jointly and severally liable for the entire $ 80,000 loss. Witham, the Trust, and Carl Sr. each file responsive briefs, and Carl Sr. argues in a cross-appeal that the court erred in holding him liable for any amount. Carl Jr. and Wayne did not appeal from the court's judgment.

[¶9] We review a summary judgment decision de novo. White v. Quechee Lakes Landowners' Ass'n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999). Summary judgment is appropriate " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3); State v. Therrien, 2003 VT 44, ¶ 8, 175 Vt. 342, 830 A.2d 28. When there are cross-motions for summary judgment, " both parties are entitled to the benefit of all reasonable doubts and inferences." Carr v. Peerless Ins. Co., 168 Vt. 465, 466, 724 A.2d 454, 455 (1998) (internal quotes omitted). If there is a genuine issue of material fact, summary judgment may not serve as a substitute for a determination on the merits. Human Rights Comm'n v. Benevolent & Protective Order of Elks, 2003 VT 104, ¶ 11, 176 Vt. 125, 839 A.2d 576.


[¶10] We first consider the judgment against Witham, Leonard, and the Trust. The trial court evaluated the arguments against [181 Vt. 159] Leonard and Witham by applying factors from the Restatement (Second) of Torts § 222A (1965), which we have followed, P.F. Jurgs & Co. v. O'Brien, 160 Vt. 294, 299-300, 629 A.2d 325, 329 (1993), to determine whether the couple's interference with Montgomery's money was serious enough to warrant liability for conversion. The court concluded that " the facts are insufficient to demonstrate that the dominion or control by Witham and Leonard rise to the level of conversion" because in their role as straw persons they did not exercise any control at all-or, to the extent that they did, only fleeting control-over the money that Carl Sr. gave them. According to the court, no...

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