Tom Carroll Elec. Constr., LLC v. Ward, No. 290-6-10 Wmcv (Wesley, J., Nov. 12, 2010) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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STATE OF VERMONT

SUPERIOR COURT

Tom Carroll Electrical Construction, LLC │ 

 Plaintiff │ 

│ WINDHAM UNIT, CIVIL DIVISION

 v. │ Docket No. 290-6-10 Wmcv 

Donald Ward │ 

 Defendant │ 

│ 

Tom Carroll │ 

 Plaintiff │ 

│ WINDHAM UNIT, CIVIL DIVISION

 v. │ Docket No. 291-6-10 Wmcv 

Donald Ward │ 

 Defendant │ 

│ 

ORDER ON PLAINTIFF’S APPEAL OF SMALL CLAIMS JUDGMENT 

Introduction 

Plaintiffs Tom Carroll Electrical Company, LLC (“LLC”), by its non-attorney 

representative and sole shareholder, Thomas M. Carroll, as well as Thomas M. Carroll 

(“Carroll”) personally and separately, appeal a small claims judgment for $2,975 in favor of 

Plaintiffs against Defendant Donald Ward (“Ward”). Plaintiffs each filed small claims 

complaints alleging that Defendant Ward had wrongfully withheld and sold property of Plaintiffs 

that had been stored pursuant to an oral rental agreement in a storage barn owned by Ward. 

Ward counterclaimed for rent in arrears for use of the storage space. 

At a hearing consolidated to consider common legal issues as to the nature of the parties’ 

contract, Acting Judge Lawrence G. Slason determined that Ward was liable to Plaintiffs for 

converting the property stored in the barn, and that Plaintiffs were liable to Ward for overdue 
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rent. The Small Claims Court then ordered a further hearing to determine damages. At the 

subsequent damages hearing, Acting Judge Lance Shader consolidated the two claims brought by 

each Plaintiff into one action, held Defendant liable to Plaintiffs jointly for the jurisdictional 

maximum of $5,000 for a single small claims case although each Plaintiff had filed a separate 

complaint, reduced this amount by the amount of rent Plaintiffs owed, and awarded Plaintiffs 

$2,975 total. 

Plaintiffs now appeal Judge Shader’s decision to offset the amount of damages owed to 

Plaintiff by the amount Defendant was owed in overdue rent, arguing that Defendant had already 

recovered that amount through the illegal sale of their property. Plaintiffs also challenge Judge 

Shader’s decision to consolidate the two actions and make them one case, which capped the 

amount of damages Plaintiffs could obtain to $5,000. This Court affirms the judgment of the 

Small Claims Court in part and reverses in part, finding that Judge Shader did not abuse his 

discretion when he offset the amount of damages owed to Plaintiffs by the amount they owed in 

overdue rent, but did commit an error when he failed to differentiate between the claims for 

damages in the two actions, limiting the total to the two claims to the jurisdictional amount for 

one small claims action. 

Small Claims Record 

As alluded to above, there were two separate Small Claims Court proceedings — one to 

determine liability, and another to assess and award damages. The Court will discuss relevant 

portions of the record. 

Hearing on Liability 

The facts found at the January 5, 2010 liability hearing appear in Judge Slason’s 

extensive Decision and Order on Liability dated March 19, 2010, and are briefly recited here. 
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Plaintiff Carroll entered into a verbal agreement with Defendant Ward for rental of storage space 

within a barn owned by Defendant located in Wilmington, Vermont. In addition to storing his 

own personal items in the space, Carroll also stored equipment and materials owned by his 

business, Tom Carroll Electrical Construction, LLC. However, Carroll failed to make any rental 

payments after March 2009, in default of his contractual obligation. 

After various failed attempts by Defendant to collect the rent or otherwise reach a 

settlement with Carroll, Defendant seized the property stored in the barn and sold it in September 

2009. From the sale of Plaintiffs’ property, Defendant received $1,600 plus $400 for one 

month’s storage rent from one party, and $100 from another party, for a total of $2,100. 

Defendant believed he was entitled to seize and sell the property pursuant to the Vermont Self 

Storage Facility Act, 9 V.S.A. § 3901, et seq. 

Carroll subsequently filed two small claims complaints on October 6, 2009 seeking 

damages for loss of property seized and sold by Defendant. Carroll sought damages in the 

amount of $1,800 plus court costs for loss of his own personal property, and damages of $4,800 

plus court costs on behalf of the LLC. Ward counterclaimed for $300 against each plaintiff for 

rent owed. 

After conducting the liability hearing, Judge Slason found Defendant liable to Plaintiffs 

for the wrongful sale and conversion of Plaintiffs’ property. The Court determined that 

Defendant did not comply with the statutory requirements of the Vermont Self Storage Facility 

Act, and thus could not avail himself of the remedies or protections of the Act. The Court held 

that without a valid written rental agreement, the Act was not applicable as a matter of law. 

Decision and Order on Liability, 8. Further, even if the Vermont Self Storage Facility Act were 

applicable, the Court found that Defendant could not avail himself of the statutory process for 
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disposing of property stored without payment because he had not published the notice of sale in a 

daily newspaper of general circulation. Id. Moreover, Defendant was found to have failed to 

sell the property in a commercially reasonable manner, as he sold the storage items for the 

amount of rent owed without regard to the actual value of the supplies, equipment, tools or 

personal belongings. Id. at 9. 

Nevertheless, Judge Slason also found Plaintiff Carroll liable to Defendant for payment 

of monthly rent from April 2009 to September 2009, which totaled $2,100. Id. at 11. Judge 

Slason ordered a hearing on damages at which Plaintiffs would have an opportunity to identify 

all items of property which were converted, identify the owner of each item of property, and 

provide evidence of the value of the property and any damages for loss of use. Id. Judge Slason 

also stated that Defendant would have an offset against Plaintiffs’ damages for the amount of 

monthly rent that was due and payable at the time of conversion. Id. 

Hearing on Damages 

On May 3, 2010, at the damages hearing before Acting Judge Shader, Plaintiff Carroll 

appeared representing himself, and Defendant Ward was accompanied by his attorney, 

Christopher Dugan. Prior to this hearing, Plaintiff Carroll had purported to amend the amounts 

previously claimed for each of the actions he filed. On the action to recover the value of his 

personal belongings, Carroll previously claimed $1,800, but now claimed that the value of the 

property totaled $6,434,26. With respect to the LLC’s case, Carroll had claimed $4,800 in 

damages, but now alleged damages totaling $24,182.91. 

 During the hearing, Defendant Ward contested the validity of the list of items Plaintiff 

identified as having been stored in the barn, stating that he had no recollection of many of the 

items claimed. Ward maintained that he would have recognized many of the items had they in 
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fact been in the barn since he himself was an electrician like Carroll, with more than fifty years 

of experience. Plaintiff was also asked why he stated damages in the amount of $4,800 for the 

LLC and $1,800 for him personally in the original claims, but was now alleging amounts far 

higher. Plaintiff responded that he had estimated those earlier figures in haste, but based on a 

more careful accounting following the hearing on liability, became convinced that the new 

figures were more accurate. Plaintiff further acknowledged that had he been more aware of the 

actual damages he incurred, he would not have brought the claims in Small Claims Court which 

is subject to a jurisdictional limit of $5,000 per action. Plaintiff asked the Court to award him the

jurisdictional maximum of $5,000 for each claim made by the two Plaintiffs. Defendant 

countered by noting that Plaintiff had ample opportunity to amend the original claims and did not 

do so, and so should be bound to his original numbers. 

In his oral findings, Judge Shader expressed difficulty in assessing the fair market value 

of the items in the storage unit. Plaintiff conceded that most of the items that were allegedly 

stored in the barn were used, yet Plaintiff only presented evidence of what the value of the items 

would be if they were purchased new. On the other hand, Judge Shader acknowledged problems 

with Defendant’s credibility, since he had been in a fiduciary position with respect to the 

property he seized and should have better accounted for what was in the barn and what was later 

sold. Resolving the conflicting evidence, Judge Shader expressed willingness to side with 

Carroll insofar as his original claims for damages were concerned, but not for the far greater 

amounts alleged in his revised accounting. 

Notwithstanding his findings as to the value of the property claimed in the two small 

claims actions, and apparently believing that the consolidated posture of the cases for hearing left 

him no other choice, Judge Shader stated that he was bound by the jurisdictional limit of $5,000. 
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Describing it as something akin to ‘rough justice’, Judge Shader held that the original claims 

totaling $6,600 represented the fair market value of the goods, reduced this amount to the 

jurisdictional maximum of $5,000, further reduced this amount by the $2,100 credit Defendant 

was owed for overdue rent, and arrived at a figure of $2,900 plus expenses in favor of Plaintiff. 

The Court reasoned that this judgment would satisfy both parties as Carroll would be getting his 

original claim, and Defendant would be receiving the amount of back rent he was owed. In 

response to Carroll’s vehement objection on grounds that there were in fact two separate claims 

made by two different plaintiffs, Defendant argued that Plaintiff originally filed the two claims 

as an “end around” way of avoiding the $5,000 jurisdictional limit. The Court did not rule on 

this contention, but nonetheless stood by its judgment of $2,900 plus expenses in favor of 

Plaintiff. 

Standard of Review 

The scope of a Superior Court’s ability to review a determination of the Small Claims 

Court is limited. “The appeal is limited to questions of law,” and more specifically, whether the 

trial court applied the correct principles of law. V.R.S.C.P 10(d). The appeal must be “based on 

the record made in the small claims court.” 12 V.S.A. § 5538. The Superior Court must accept 

the factual findings of the Small Claims Court unless they are clearly erroneous. Bartley-Cruz v. 

McLeod, 144 Vt. 263, 264 (1984). As long as there is substantial evidence to support a trial 

court’s finding of fact, deference must be ascribed to that determination. “The evidence must be 

examined in the light most favorable to the prevailing party, and the effect of any modifying 

evidence must be excluded.” Jarvis v. Koss, 139 Vt. 254, 254-55 (1981). 
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Analysis 

On appeal, and now represented by Norman Smith, Esq., Plaintiffs raise two issues: 

(1) the Court failed to reduce its judgment for the rental amount due from Plaintiffs to Defendant 

by amounts received from the sale of the property; or in other words, the Court should not have 

set off any judgment rendered in favor of Plaintiff by any amount Plaintiff owed Defendant in 

overdue rent, and (2) the Court committed reversible error in combining the two actions for 

purposes of awarding damages. Each question will be addressed below. 

A. Set off Amount 

Plaintiffs argue that the total sale proceeds obtained by Defendant pursuant to the 

unlawful conversion should have offset the total rent due from Plaintiffs, resulting in no 

reduction in the judgment amount in favor of Plaintiffs. Accordingly, even assuming the 

proceedings had been properly consolidated into a single case, the judgment should have been 

for $5,000, not $2,900. By Plaintiffs logic, offsetting the judgment by awarding Defendant a 

credit for the amount of rent Plaintiff owed had the effect of doubly rewarding Defendant, the 

wrongful converter, who already obtained the exact amount of rent that he was owed from the 

wrongful sale of Plaintiffs’ goods. 

 This Court concludes that Judge Shader did not abuse his discretion in crediting 

Defendant for the amount of rent he was owed by Plaintiff. Judge Slason had already found that 

“Defendant will have an offset against Plaintiffs’ damages for the amount of monthly rent that 

was due and payable at the time of conversion,” an amount determined to be $2,100. This was 

consistent with fundamental principles of offset, by which a plaintiff’s judgment may be reduced 
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by the amount of a defendant’s counterclaim judgment. This requires a separate analysis for the 

basis for recovery under each claim. Fletcher Hill, Inc. v. Crosbie, 178 Vt. 77 (2005). 

The purpose of awarding damages for conversion is to restore plaintiffs to the position 

they would have been had the wrongful conversion not occurred. Ordinarily, the measure of 

damages is the fair market value of the property at the time and place of conversion. Gaylord v . 

Hoar, 122 Vt. 146 (1960). Here, Judge Slason was not persuaded that the fair market value of 

the converted property was equivalent to the amount owed in unpaid rent, thus he ordered the 

further hearing on damages. Had Judge Shader concluded after hearing all the evidence on 

damages that, in fact, the value of the converted property was exactly the same as the amount of 

the unpaid rent, he would have entered judgment of $2,100 on each claim, resulting in a net 

judgment to Plaintiffs of zero. This would have properly reflected that Defendant’s counterclaim 

for rent had been extinguished by the value of the property he converted, leaving no liability for 

further damages as a result of the conversion since the property was worth no more than what 

was owed in rent. 

By extending the logic to the facts actually found, it becomes apparent that Judge 

Shader’s application of a set off results in no “double recovery”. Rather, it grants to Plaintiff 

damages for any proven value of the converted goods that was above the amount applied against 

the rents owing. In the exact obverse of Plaintiffs’ argument, accepting their premise would put 

them in a better position than had the conversion never taken place. Defendant would effectively 

have to pay back to Plaintiffs the amount of the unpaid rent. No viable theory of damages 

supports such a result. 
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B. Consolidation of Claims 

Plaintiffs also appeal Judge Shader’s decision to consolidate the two claims brought by 

each plaintiff into one case, which effectively limited the Plaintiffs’ recovery to $5,000, the 

jurisdictional limit that a single plaintiff may seek in a small claims action. 12 V.S.A. § 5531(a). 

Plaintiffs also argue that Carroll presented credible evidence showing the value of his converted 

personal property to be worth $6,434.26, and the value of the LLC’s claim to be worth 

$24,182.91. Since both amounts exceed the jurisdictional amount of $5,000, Plaintiffs maintain 

that they should have been awarded separate judgments of $5,000 each. 

Because Judge Slason consolidated the matters and rendered a consolidated merits 

decision, Defendant maintains that no further challenge is possible, because none of the parties 

appealed the liability ruling. V.R.S.C.P. 10. Alternatively, Defendant argues that Judge 

Shader’s damages award resulted from findings of fact which may not be overturned absent clear 

error. V.R.S.C.P 10 (d). 

This Court finds Defendant’s arguments unpersuasive. Judge Slason consolidated the 

two actions for efficiency purposes, as the two claims contained common questions of law and 

fact. Even if his ruling could be construed as having limited Plaintiffs’ claims within the scope 

of a single case, it wouldn’t have been a final order subject to appeal since he specifically 

continued the proceedings for further consideration of damages. In any event, Judge Slason’s 

order gives no indication that he had concluded as a matter of law that Plaintiffs were entitled to 

seek only a single damages award. Indeed, Judge Slason explicitly found Defendant “legally 

liable to Plaintiffs for the wrongful sale and conversion of each Plaintiffs’ property.” Order, 12 

(emphasis added). Further, Judge Slason found credible evidence at the liability hearing 

establishing that both personal and LLC property were stored in the Defendant’s barn. 
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In support of Judge Shader’s ruling, Defendant argued that it should be sustained because 

Plaintiffs’ strategy of filing separate claims for the loss of Mr. Carroll’s personal property, as 

well as for the converted business property held by the LLC, amounted to a so-called “end 

around” of the small claims jurisdictional limit. Yet, as stated above, Judge Slason made 

findings directly contradictory to this assertion, and his mandate for further proceedings on 

damages explicitly contemplated consideration of evidence to identify property owned by the 

separate claimants. Furthermore, not only did Judge Shader fail to make a ruling in response to 

Defendant’s “end around” argument, but his own findings as to the reasonable basis for the 

losses claimed in each of the original complaints are consistent with Judge Slason’s similar 

conclusions. These findings were reasonably supported by the evidence, including Judge 

Slason’s findings that Mr. Carroll’s original estimate of the value of the converted property 

owned by each Plaintiff was more credible than his subsequent efforts at a revised accounting. 

Thus, while Judge Shader cannot be faulted for limiting Plaintiffs’ claims to the amounts 

originally sought, he erred by collapsing the two actions into one claim, holding himself limited 

by the $5,000 jurisdictional limit. 

Since Judge Shader found that Plaintiffs were entitled to the original amounts claimed by 

Mr. Carroll ($4,800 on behalf of the LLC and $1,800 personally), no remand is required to 

correct his error of law regarding a single jurisdictional limit. Rather, this Court will enter 

judgment against Defendant for these amounts. However, the judgments for each Plaintiff will 

be offset by the $2,100 that Plaintiffs owed Defendant in back rent on pro rata basis per claim. 

Accordingly, this Court directs entry of a Small Claims Judgment in favor of Plaintiff LLC for 

$3,270 plus expenses, and entry of a Small Claims Judgment in favor of Plaintiff Carroll for 

$1,230 plus expenses. 
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ORDER 

WHEREFORE it is hereby ORDERED: The judgment of the Small Claims Court is 

AFFIRMED in part, and REVERSED in part. Entry of a Small Claims Judgment in favor of 

Plaintiff LLC shall issue for $3,270 plus expenses, and entry of a Small Claims Judgment in 

favor of Plaintiff Carroll shall issue for $1,230 plus expenses. 

Dated at Newfane, Vermont this 11th day of November, 2010. 

 _____________________________ 

 John P. Wesley 

 Presiding Judge