Montgomery v. Devoid

Montgomery v. Devoid (2005-106)

2006 VT 127

[Filed 22-Nov-2006]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2006 VT 127

No. 2005-106

Thomas Montgomery Supreme Court

On Appeal from
v. Chittenden Superior Court

Carl L. Devoid, Jr., Carl L. Devoid, Sr., March Term, 2006
Wayne M. Devoid, Leonard R. Devoid,
Elizabeth M. Witham and The Leonard R.
Devoid Revocable Trust

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.

¶ 1. REIBER, C.J. 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, 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 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 stolen 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 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 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 and Protective Order of Elks, 2003 VT
104, ¶ 11, 176 Vt. 125, 839 A.2d 576.

I.

¶ 10. We first consider the judgment against Witham, Leonard, and
the Trust. The trial court evaluated the arguments against 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 evidence suggested that Witham or Leonard
intended to exercise any control over the $10,000 or had any bad faith with
respect to the transaction. The trial court also rejected Montgomery's
claim of civil conspiracy for aiding and abetting the conversion, stating
that to the extent the couple acted intentionally to perpetuate the
conversion, it was only after the conversion took place, and they could not
be liable for a type of retroactive conspiracy "merely because they were
not forthright with the police after they concluded their fleeting and
inadvertent involvement with the assets in question."

¶ 11. On appeal, Montgomery argues that Witham and Leonard are
liable because: (1) they exercised dominion and control over the $10,000 by
depositing the money into their bank accounts and writing checks on the
funds; (2) Witham admitted that the couple agreed to the transaction for
illegal purposes (concealing Carl Sr.'s assets so he could avoid paying
taxes and not lose eligibility for government benefits); and (3) the couple
lied to police about the transaction after learning of the true source of
the funds, thereby aiding and abetting the conspiracy after the fact.
Montgomery also argues that the Trust is liable because Leonard allowed
Carl Sr. to store vehicles purchased with stolen funds on his property.
Witham responds that she did not commit conversion because she had no
knowledge of the source of the money at the time of the transaction with
Carl Sr., she never exercised control over the funds, and she did not
retain or benefit from the money. The Trust argues that Leonard never
appropriated or exercised dominion over the money, but rather held it only
briefly for another whom he believed to be its rightful owner. We conclude
that the trial court did not err in granting summary judgment to Witham,
Leonard, and the Trust on Montgomery's conversion and civil conspiracy
claims.

A.

¶ 12. "To establish a claim for conversion, the owner of property
must show only that another has appropriated the property to that party's
own use and beneficial enjoyment, has exercised dominion over it in
exclusion and defiance of the owner's right, or has withheld possession
from the owner under a claim of title inconsistent with the owner's title."
O'Brien, 160 Vt. at 299, 629 A.2d at 328; Hegarty v. Addison County Humane
Soc'y, 2004 VT 33, ¶ 9, 176 Vt. 405, 848 A.2d 1139 (accord). "The key
element of conversion, therefore, is the wrongful exercise of dominion over
property of another." O'Brien, 160 Vt. at 299, 629 A.2d at 329. This
Court's description of the tort of conversion is consistent with that of
the Restatement (Second) of Torts § 222A(1), which defines conversion as
"an intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it that the actor
may justly be required to pay the other the full value of the chattel."
(FN1)

¶ 13. The Restatement, upon which this Court has relied in
considering conversion claims, see O'Brien, 160 Vt. at 299-300, 629 A.2d at
329, (FN2) cites several factors for determining the seriousness of the
interference and the justice of imposing liability on the interfering
party. Those factors include:

(a) the extent and duration of the actor's exercise of dominion
and control; (b) the actor's intent to assert a right in fact
inconsistent with the other's right of control; (c) the actor's
good faith; (d) the extent and duration of the resulting
interference with the other's right of control: (e) the harm done
to the chattel; (f) the inconvenience and expense caused to the
other.

Restatement (Second) of Torts § 222A(2). "No one factor is always
predominant in determining the seriousness of the interference, or the
justice of requiring" full payment for the converted property, although
courts consider "[n]ot only the conduct of the defendant, but also its
consequences." Id. cmt. d. Generally, courts have limited liability for
conversion "to those serious, major, and important interferences with the
right to control the chattel which justify requiring the defendant to pay
its full value." Id. cmt. c; see also 1 D. Dobbs, The Law of Torts § 64,
at 137 (2001) ("The Restatement's principle is to declare a conversion
when, but only when, the facts justify such an extreme remedy-when the
defendant exercised quite extensive dominion over the chattel.").

¶ 14. Accordingly, we must decide whether Witham and Leonard
intentionally exercised dominion or control over, and so seriously
interfered with Montgomery's right to control, the stolen money such that
they are justly liable for Montgomery's loss. In resolving this question,
we examine each of the Restatement factors. As to the first factor-the
extent and duration of the exercise of dominion and control-Witham and
Leonard exercised total but fleeting control over the money when they
accepted it from Carl Sr. and deposited it into their accounts. Although
they technically had complete control over the money while it was in their
accounts, they never considered the money their own or acted as if they
did. As far as they were concerned, their dominion and control over the
money would last only as long as it took Carl Sr. to cash the checks. As
it turned out, Carl Sr. held onto the checks for about one month.
Nevertheless, the extent and duration of Witham and Leonard's agreed-upon
control was minimal-they wrote checks to Carl Sr. on the day he gave them
the cash. Not only was the couple's holding of the money temporary, but
Montgomery has not demonstrated that the couple learned of the source of
the money while it was in their possession.

¶ 15. The couple's lack of knowledge concerning the source of the
money leads us to the second factor-Witham and Leonard's intent "to assert
a right in fact inconsistent with the other's right of control."
Restatement, supra, § 222A(2)(b). Without question, Witham and Leonard
intentionally took the money, but they did not intend to assert actual
dominion over the money for any length of time. Under their agreement with
Carl Sr., they were to transfer the money from cash into checks
immediately. Their actions conformed with that agreement. They did not
consider the money to be their own, and thus they did not intend to assert
a right in fact inconsistent with any other person's right of control.

¶ 16. The third factor is the actor's good faith. We have stated
that the good-faith factor "is relevant only to the question of whether the
converter intended to exercise dominion over the property." O'Brien, 160
Vt. at 300, 629 A.2d at 329. That comment, however, was part of a
discussion rejecting good faith as a complete defense to liability. Id.
("Specific intent to convert, that is, knowledge that the property is owned
by another, is not required for liability in tort."). Other jurisdictions
applying the Restatement factors have rejected good faith as a defense to a
conversion claim but considered it as a factor in determining whether a
defendant so seriously interfered with another's property that the
defendant may justly be required to pay the full value of the property.
See Beall Transp. Equip. Co., 64 P.3d at 1197 (reaffirming that good faith
may be considered as factor in determining whether alleged tortfeasor is
liable for conversion); see also Trickey, 933 P.2d at 536 (citing intent
and good faith as relevant factors in determining whether conversion
occurred); Rowe, 424 N.W.2d at 247 (applying good-faith factor). We find
this reasoning to be sound. We emphasize that one may be liable for
conversion even absent knowledge that the property belongs to another;
nevertheless, the good faith of the defendant, while not determinative in
and of itself, may be a factor in determining whether liability for
conversion is appropriate.

¶ 17. Here, Witham and Leonard initially acted in good faith, at
least with respect to the rightful owner of the cash, whom they did not
know to exist at the time Carl Sr. came to them for the "loan." They took
the money from Carl Sr. for the purpose of doing a favor for a family
member. We recognize that they were helping Carl Sr. shield assets from
tax liability and prevent the government from reducing his benefits, but
any bad faith in that regard is unrelated to the question of their
interference with Montgomery's right to the money. On the other hand,
Witham and Leonard did not act in good faith in perpetuating the alleged
conversion by lying to police after learning of the source of the money.

¶ 18. The fourth factor is the extent and duration of the resulting
interference with Montgomery's right of control. Witham and Leonard's
conduct in shielding the money Carl Sr. gave them was two steps removed
from the initial conversion. Further, Montgomery has not indicated how
that conduct, or the couple's later false statements to police, directly or
significantly furthered the interference with his right of control over the
stolen money. There is no suggestion that the sham transaction was a
proximate cause of Montgomery's loss or delayed in any significant way the
police investigation of the theft. Regarding the couple's cover-up, the
police investigation had already led law enforcement to strong evidence
implicating the primary tortfeasors, and Carl Sr. had already used the
money to pay off his loan before the detective came to their house in
September. Hence, Witham and Leonard's failure "to come clean" at that
time did not significantly interfere with Montgomery's right of control.

¶ 19. For similar reasons, the fifth and sixth factors also weigh
in favor of Witham and Leonard. There is no indication that the couple's
conduct caused Montgomery additional harm, inconvenience, or expense.
Although the theft of Montgomery's money undoubtedly caused him significant
inconvenience and expense, the causal connection to Witham and Leonard is
weak. All in all, the Restatement factors do not support the extreme
remedy of imposing liability on Leonard and Witham for converting any
portion of the cash stolen from Montgomery. See Restatement, supra, § 229
cmt. b (stating that one should not be held liable for conversion where
receipt of chattel is "temporary, trivial, or unimportant").

B.

¶ 20. Montgomery's complaint also alleged a count of "conspiracy"
against Witham and Leonard, among other defendants, for aiding and abetting
the conversion after the fact by helping the tortfeasors conceal the stolen
money. Montgomery argues on appeal that the superior court erred by
requiring him to meet the burden of proving a criminal conspiracy. He
contends that his actual claim is aiding and abetting another in the
commission of a tort, which requires only that he show: "(1) the existence
of a primary violation; (2) knowledge of this violation on the part of the
aider and abettor; and (3) substantial assistance by the aider and abettor
in the achievement of the primary violation." Calcutti v. SBU, Inc., 273
F. Supp. 2d 488, 493 (S.D.N.Y. 2003). According to Montgomery, Witham and
Leonard are jointly liable for aiding the conversion of his money because
they exchanged the funds for Carl Sr. and later lied to police about it,
and because Leonard stored vehicles purchased with the stolen funds on his
property in Hinesburg.

¶ 21. We find no basis for overturning the superior court's summary
judgment in favor of Witham and Leonard on Montgomery's civil conspiracy
claim. Assuming that Montgomery has satisfied the first two elements set
forth in Calcutti, he cannot demonstrate, for reasons similar to those
discussed above, that Witham and Leonard provided "substantial assistance"
to the tortfeasor in achieving the conversion. Closely intertwined with
the concept of "substantial assistance" is the principle of proximate
cause. Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 284 (2d
Cir. 1992), overruled on other grounds by Gerosa v. Savasta & Co., 329 F.3d
317, 327 (2d Cir. 2003). Given the couple's initial lack of knowledge
regarding the source of the money, their fleeting control over the funds,
and the relatively innocuous effect of their failure to later tell the
police the truth about their transaction with Carl Sr., their conduct is
too removed and tenuous to provide a necessary causal link for their
assistance to qualify as substantial.

¶ 22. Moreover, we have held that "[a]ll who aid in the commission
of a tort by another, or who approve of it after it is done, if done for
their benefit, are liable in the same manner as they would be if they had
done it with their own hands." Dansro v. Scribner, 108 Vt. 408, 411, 187
A. 803, 804 (1936) (emphasis added); see Echelon Homes, LCC v. Carter
Lumber Co., 683 N.W.2d 171, 179 (Mich. Ct. App. 2004), rev'd in part on
other grounds, 694 N.W.2d 544 (Mich. 2005) (stating that liability for
assisting in conversion is "especially applicable where the defendant
received benefit from the conversion and subsequently approved and adopted
it"). Here, the only benefit that Montgomery claims inured to Witham and
Leonard is the satisfaction of aiding members of their family. The lack of
any monetary benefit undoubtedly stems from the couple's apparent innocence
in initiating, and insignificant role in perpetuating, the conversion. For
all of the above reasons, the superior court did not err by granting
summary judgment to Witham and Leonard with respect to Montgomery's claims
of aiding and abetting a conversion.

II.

¶ 23. Montgomery also argues that each of the defendants aiding and
abetting the tortfeasor's conversion of his funds is jointly and severally
liable for the entire amount taken-approximately $80,000. This issue is
moot with respect to Witham and the Trust because we have affirmed the
superior court's ruling that Witham and Leonard are not liable to any
extent for the conversion of Montgomery's money; however, we must address
the extent of Carl Sr.'s liability, if any, given the superior court's
ruling that Carl Sr. is guilty of conversion of $10,000. Montgomery sought
summary judgment against all of the defendants, including Carl Sr., for the
entire $80,000. Carl Sr. opposed the motion and filed a cross-motion for
summary judgment with respect to any amount exceeding $10,000, arguing that
Montgomery failed to demonstrate a connection between him and any funds
other than the $10,000 allegedly given to him by his son. The superior
court granted summary judgment to Montgomery with respect to the $10,000
based on the undisputed fact that Carl Sr. took the $10,000 from his son
knowing that it had been stolen, but granted summary judgment to Carl Sr.
with respect to the remainder of the stolen money, ruling that Montgomery
had not provided any evidence demonstrating that Carl Sr. otherwise aided
his son in converting the stolen money or exercised control over any money
other than the $10,000.

A.

¶ 24. We first address Carl Sr.'s cross-appeal, in which he argues
that the superior court erred by granting summary judgment to Montgomery
for conversion of the $10,000 that Carl Sr. allegedly received from his
son. The undisputed facts supporting Montgomery's motion for summary
judgment with respect to the $10,000 were that: (1) the day after Carl Jr.
allegedly stole the $80,000 in cash from Montgomery, Carl Sr. arrived at
the Leonard's and Witham's home and gave them $10,000 in cash in exchange
for two $5000 checks; (2) Carl Sr. told the couple that he had earned the
money from a big job, but wanted to conceal it to avoid taxes and a
reduction of government benefits; (3) Witham testified in a deposition that
Carl Sr. later told Leonard about the true source of the money and Leonard
relayed the information to her; (4) Witham testified that when she learned
of the true source of the money, she was angry that Carl Sr. had gotten
them involved and that she did not know how to get out of it without
getting him into trouble; (5) during a police investigation, Witham and
Leonard lied to police about Carl Sr. giving them the $10,000 because they
were afraid Carl Sr. would go to jail if they told the truth; (6) Wayne
Devoid, who allegedly helped his brother Carl Jr. count the money shortly
after the burglary, told investigators that Carl Jr. had used part of the
money to pay off Carl Sr.'s car loan; and (7) bank documents indicated that
Carl Sr. paid off his car loan, which was approximately $10,000, within
several weeks of receiving the checks from Leonard and Witham.

¶ 25. At his deposition, when asked about his knowledge of the
Montgomery break-in or the source of the $10,000 that he had allegedly
given to Witham and Leonard, Carl Sr. refused to answer any questions and
invoked the privilege against self-incrimination contained in the Fifth
Amendment to the United States Constitution. In his response to
Montgomery's motion for summary judgment, Carl Sr. admitted telling Witham
and Leonard that he wanted them to conceal $10,000 that he had earned so
that he could avoid paying taxes, but he argued that Witham's deposition
testimony was insufficient to support Montgomery's summary-judgment motion
because it contained only inferences and innuendos suggesting that the
$10,000 came from the Montgomery burglary. The court found Witham's
deposition testimony admissible because both Carl Sr.'s statement to
Leonard and Leonard's statement to Witham were nonhearsay admissions of
party opponents, pursuant to Vermont Rule of Evidence 801(d)(2)(A). From
the testimony, the court inferred that Carl Sr. had told Leonard that the
money was from Carl Jr.'s theft so that Carl Sr. knew that neither he nor
Carl Jr. was the rightful owner of the money.

¶ 26. On appeal, Carl Sr. contends that the superior court erred by
granting summary judgment against him for $10,000 based on the evidentiary
record before it. According to Carl Sr., Montgomery submitted only
inferential evidence as to what Carl Sr. knew about the source of the
$10,000 he gave to Witham and Leonard, insofar as Witham never actually
stated in her deposition what Carl Sr. told Leonard regarding the money.
Carl Sr. also argues that Montgomery never presented a "statement" that
could be attributable to him, but rather provided only inferential evidence
regarding what Carl Sr. knew about the source of the $10,000. In Carl Sr.'s
view, Witham's deposition testimony regarding his conversation with Leonard
cannot be deemed an admission under Rule 801(d)(2)(A) because it contained
only inferences and no "statement."

¶ 27. We are unconvinced by these arguments. Rule 801(a) defines a
"statement" as "(1) an oral or written assertion or (2) nonverbal conduct
of a person, if it is intended by him as an assertion." Nonhearsay
admissions by a party-opponent are governed by Rule 801(d)(2)(A), which "
'makes no attempt to categorize the myriad ways in which a party . . . may
make an admission. Admissions can be made expressly or may be inferred
from conduct.' " 30B M. Graham, Federal Practice and Procedure § 7015, at
200 n.1 (2006) (quoting Weinstein's Evidence ¶ 801(d)(2)(A)[01] at 801-239
(1990)). Thus, Witham's deposition testimony does contain statements as
contemplated under Rule 801.

¶ 28. Moreover, while the party opposing summary judgment is
entitled to the benefit of all reasonable doubts and inferences, see Carr,
168 Vt. at 466, 724 A.2d at 455, the only reasonable inference that can be
drawn from the state of the record and the materials relied upon by
Montgomery in support of his motion is that Carl Sr.: (1) received the
$10,000 from Carl Jr. within a day of the theft at Montgomery's home, (2)
knew that Carl Jr. had illegally obtained the money, and (3) attempted to
launder the funds through Witham and Leonard. Further, that same evidence
supports the conclusion-without requiring a full exposition of the
Restatement factors-that Carl Sr.'s intentional exercise of dominion or
control over the $10,000 so seriously interfered with Montgomery's right to
control it that justice requires that Carl Sr. repay it.

¶ 29. Nevertheless, in his opposition to Montgomery's motion, Carl
Sr. did not deny the allegations, but rather stated what he told Witham and
Leonard the day after the theft and argued that Montgomery's allegations
against him required making inferences. Nor did Carl Sr. deny Montgomery's
allegations at his deposition. Rather, he refused to answer any questions
regarding his knowledge of the source of the $10,000. Under these
circumstances, the superior court did not err in granting summary judgment
against Carl Sr. for $10,000. See V.C.R.P. 56(e) ("When a motion for
summary is made and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the adverse party's
pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial").

¶ 30. While we may not make negative inferences from a person's
decision to plead the Fifth Amendment privilege against self-incrimination,
"the Fifth Amendment privilege cannot be invoked as a shield to oppose
depositions while discarding it for the limited purpose of making
statements to support a summary judgment motion." Edmond v. Consumer Prot.
Div., 934 F.2d 1304, 1308 (4th Cir. 1991); cf. United States v. Sixty
Thousand Dollars in U.S. Currency, 763 F. Supp. 909, 914 (E.D. Mich. 1991)
(holding that because claimant had asserted Fifth Amendment during
discovery, he may not submit affidavits in opposition to government's
motion for summary judgment). Confronted with evidence indicating that he
had converted at least $10,000 of the money stolen from Montgomery, Carl
Sr. cannot refuse to answer questions regarding the source of the money,
and at the same time claim that the court is precluded from making the only
reasonable inference possible from the evidence submitted in support of
Montgomery's motion for summary judgment.

B.

¶ 31. The remaining issue is whether Carl Sr. is liable for the
entire $80,000 stolen from Montgomery's home. The trial court ruled that,
with respect to any sums beyond the $10,000 Carl Jr. gave to Carl Sr.,
Montgomery failed to provide any evidence demonstrating that Carl Sr.
otherwise aided his son in converting the funds or benefitted from
exercising dominion or control over such funds. We conclude that material
facts remain in dispute concerning Carl Sr.'s role in the alleged
conversion-and thus the extent of his liability; accordingly, summary
judgment was not appropriate. See Carr, 168 Vt. at 466, 724 A.2d at 455
(summary judgment is appropriate if there are no genuine disputed issues of
material fact and moving party is entitled to judgment as matter of law).

¶ 32. To be sure, "[c]ourts can hold that a tortfeasor is
responsible only for some particular share or portion of the plaintiff's
loss, no more." 1 D. Dobbs, The Law of Torts § 170, at 413; see
Restatement (Second) of Torts § 433A ("Damages for harm are to be
apportioned among two or more causes where (a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each
cause to a single harm."). Such an apportionment may be based on cause or
comparative fault. Dobbs, supra, § 170, at 413.

¶ 33. On the other hand, "courts may conclude that no apportionment
is rationally possible on the evidence or that apportionment is
undesirable." Id. For example, "persons who act in concert, pursuant to a
common plan or design" are made liable as joint tortfeasors for harm done
by the others involved. Id.; see Therrien, 2003 VT 44, ¶ 24 (joint
tortfeasors are those who act " 'in concert . . . in pursuance of a common
design' ") (quoting W. Keeton et al., Prosser and Keeton on the Law of
Torts § 46, at 322-23 (5th ed. 1984)); Giguere v. Rosselot, 110 Vt. 173,
181, 3 A.2d 538, 541 (1939) (whenever independent acts of several persons
concur to produce single, indivisible injury that would not have occurred
without such concurrence, each person is responsible for entire result and
may be sued jointly and severally). A person is subject to liability for
harm resulting to a third person from the tortious conduct of another if
the person: (1) commits a tortious act as part of a common design with the
other; (2) gives substantial assistance to the other knowing that the
other's conduct is a breach of duty; or (3) gives substantial assistance to
the other to accomplish a tortious result while also acting in a manner
that is a breach of duty to the third person. Restatement (Second) of
Torts § 876 (1979).

¶ 34. Here, Montgomery argues that Carl Sr. should be held liable
for the entire $80,000 because he "was an active participant in the
attempt to conceal the Plaintiff's property by laundering the funds and
fraudulently making it appear to be a loan, as well as hiding vehicles
purchased with the stolen funds at his brother's residence in Hinesburg."
There is evidence in the record indicating not only that Carl Sr. received
$10,000 of the stolen money the day after the burglary, but also that he
stored vehicles purchased with stolen money at Leonard and Witham's home,
and also removed several of the most valuable stolen items from Carl Jr.'s
apartment at his son's request shortly before the police executed a search
warrant. This evidence raises genuine issues of material fact as to his
potential liability beyond the $10,000 he gave to Witham and Leonard. We
therefore remand the matter for additional proceedings for the superior
court to consider Montgomery's claim that Carl Sr. should be held jointly
and severally liable for an amount in excess of the $10,000.

Affirmed in part, and reversed and remanded in part.

FOR THE COURT:

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. Chattel is generally defined as tangible personal property, and not
money. Black's Law Dictionary 251 (8th ed. 2004). Because of its
historical roots, the tort of conversion traditionally applied only to
tangible goods, but has since expanded to include intangibles merged in
documents such as bonds, stock certificates, bills of exchange, Lyon v.
Bennington College Corp., 137 Vt. 135, 137, 400 A.2d 1010, 1012 (1979),
money, and negotiable instruments, see 1 D. Dobbs, The Law of Torts § 66,
at 149 (2001) ("Although conversion did not traditionally lie for taking
paper money, the plaintiff had an action of some kind and today the action
may well be called one for conversion."). Today it may be said that "when
the defendant commits an affirmative act and physically takes control of
particular paper monies he is guilty of conversion, even if the particular
bills or coins cannot be identified." Id. § 63, at 132; cf. Bender v.
Bender, 471 A.2d 335, 337-39 (Md. Ct. App. 1984) (affirming judgment for
conversion against former wife who had money removed from former husband's
safe shortly before divorce). Apart from a brief statement that Witham's
attorney made for the first time at oral argument suggesting that money
could not be the "corpus" of the conversion, none of the defendants have
argued that conversion cannot apply to stolen money, and thus we do not
address the issue in any depth. See Will v. Mill Condo. Owners' Ass'n,
2004 VT 22, ¶ 4, 176 Vt. 380, 848 A.2d 336 (arguments not raised or
fairly presented to trial court are not preserved for appeal); cf.
Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 1 n.2, 176 Vt. 356, 848
A.2d 310 (arguments raised for first time in reply brief need not be
considered).

FN2. Many other courts have applied § 222A in considering conversion cases.
See, e.g., Alaska Cont'l, Inc. v. Trickey, 933 P.2d 528, 536 (Alaska 1997);
Focal Point, Inc. v. U Haul Co. of Ariz., 746 P.2d 488, 489 (Ariz. Ct. App.
1986); People v. Wechsler, 854 P.2d 217, 221 n. 2 (Colo. 1993); Luzar v. W.
Sur. Co., 692 P.2d 337, 340 (Idaho 1984); Larson v. Great W. Cas. Co., 482
N.W.2d 170, 174 (Iowa Ct. App. 1992); Mauboules v. Broussard Rice Mills,
379 So. 2d 1196, 1198 (La. Ct. App. 1980); Keys v. Chrysler Credit Corp.,
494 A.2d 200, 209 (Md. 1985); LFC Leasing & Fin. Corp. v. Ashuelot Nat'l
Bank, 419 A.2d 1120, 1121 (N.H. 1980); Hinkle v. Cornwell Quality Tool Co.,
532 N.E.2d 772, 776 (Ohio Ct. App. 1987); Beall Transp. Equip. Co. v. So.
Pac. Trans., 64 P.3d 1193, 1196 (Or. Ct. App. 2003).