Dorr v. Lacoste, No. 14-1-11 Bncv (Valente, J., Feb. 5, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                       STATE OF VERMONT
    SUPERIOR COURT                                                                                           CIVIL DIVISION
    Bennington Unit                                                                                  Docket No. 14-1-11 Bncv

    Donald D. Dorr,
          Plaintiff

             v.
                                                                                          DECISION ON MOTION
    Paul M. Lacoste,
    Debra J. Lacoste,
           Defendants


                                                                    Opinion

This is a contract case under the Prompt Payment Act (PPA) that has given rise to a unique set of
procedural circumstances.1 On August 14, 2012, this court granted Plaintiff judgment against
Defendant. Defendant2 appealed the case to the Vermont Supreme Court, which affirmed the
court’s decision. No further action was taken until 2015, when Plaintiff filed a Motion for
Judgment Order. This court denied the motion, finding that the 2012 decision contained a final
judgment. On January 8, 2016, Plaintiff submitted a Writ of Execution for the $68,715.21
judgment as well as $31.23 in daily interest.3 For the following reasons, the Court instructs the
Clerk to set daily interest at $15.62 before issuing the writ.

Vermont Rule of Civil Procedure 69 states: “In the writ of execution, the clerk shall set forth the
amount of post-judgment interest due per day, calculated on the full amount of principal included
in the judgment at the maximum rate allowed by law.” Plaintiff did not provide documentation
regarding how he arrived at the $31.23 daily interest amount. However, it is apparent that the
amount is based on an annual interest rate of 24% on the principal of $47,500.00. It appears
Plaintiff arrived at this percentage by including two separate claims for 12% per annum interest.
The first 12% interest based on his theory that he is entitled to it under the Prompt Pay Act


1
 The court refers to the recitation of the procedural history in its previous opinion of November
20, 2015, and recitation of the facts in its previous opinion of August 14, 2012, as well as the
Vermont Supreme Court’s unpublished opinion, Dorr v. LaCoste, No. 2013-408 (Vt. June 12,
2013) (unpub. mem.), available at https://www.vermontjudiciary.org/UPEO2011Present/eo12-
408.pdf.
2
    A second defendant, Mr. LaCoste’s wife, was dismissed from the case in 2012.
3
 The parties had previously submitted written and oral argument on the issue of interest but the
court did not reach that issue in its prior ruling. Pursuant to this court’s entry order, both parties
supplemented their prior submissions on the proper rate of interest with memorandums directly
addressing this issue.
(PPA), 9 V.S.A. §§ 4001 et seq. The second 12% interest is the general statutory interest on
judgments provided for in 9 V.S.A. § 41a(a).4

Because Rule 69 states that the clerk may only set forth the amount of post-judgment interest at
the maximum rate “allowed by law,” the court must decide whether an additional post-judgment
rate of 12% interest per year is permitted under the PPA. In order to do this, it must interpret the
text of § 4007(b). Although this issue has not been squarely addressed before, the federal court
for the district of Vermont has indicated that § 4007(b) interest is only pre-judgment interest.
See Jim Billado Roofing, LLC v. Custom Copper & Slate, Ltd., No. 1:08-CV-97, 2010 WL
1881097 at *5-6 (D. Vt. May 10, 2010) (“The VPPA provides for prejudgment interest as
follows,” and then proceeds to quote the entirety of § 4007(b)) (emphasis added), but see
Birchwood Land Co., Inc. v. Ormond Bushey & Sons, Inc., 2013 VT 60, ¶ 23, 194 Vt. 478
(Warning against “conflat[ing] penalities under § 4007 of PPA and prejudgment interest,” and
also stating that “[a]lthough both accrue at the rate of 1%, they are distinct legal remedies.”), see
also id. ¶ 25 n.6 (rejecting holding in Jim Billado and declaring that prejudgment interest is
available to a party despite the presence of the other party’s unliquidated claim).

“When interpreting statutes, the bedrock rule of statutory construction is to determine and give
effect to the intent of the Legislature.” Delta Psi Fraternity v. City of Burlington, 2008 VT 129,
¶ 7, 185 Vt. 129 (internal quotation marks and alteration omitted). “[Courts] effectuate this
intent by first examining the plain meaning of the language used in light of the statute’s
legislative purpose…. If that plain language resolves the conflict without doing violence to the
legislative scheme, there is no need to go further.” Id. (internal quotation marks and alteration
omitted). “Where the plain meaning of the words of the statute is insufficient guidance to
ascertain legislative intent, [courts] look beyond the language of a particular section standing
alone to the whole statute, the subject matter, its effects and consequences, and the reason and
spirit of the law.” State v. Thompson, 174 Vt. 172, 175 (2002).

“The purpose of the prompt payment act is to provide protection against nonpayment to
contractors and subcontractors.” Elec. Man, Inc. v. Charos, 2006 VT 16, ¶ 12, 179 Vt. 351.
However, the relevant plain language of the statute does not shed light on this interest rate issue.
The statute provides for 1% monthly interest “in addition to all other damages due and as a
penalty, an amount equal to one percent per month of all sums as to which payment has
wrongfully been withheld.” 9 V.S.A. § 4007(b). That is the same penalty imposed by the post-
judgment interest in 9 V.S.A. § 41a(a). While the statute does use the words “in addition to,”
there is no reference to pre- or post-judgment time periods. Thus, for purposes of this issue, the
court concludes that there is no plain meaning and that it must look to the statute as a whole, the
subject matter, its effects and consequences, and the reason and spirit of the law. Thompson, 174
Vt. at 175.

Clearly, the § 4007(b) interest is a penalty designed to motivate a breaching party to pay
promptly. The court finds it significant that § 4007(b) also discusses pre-trial arbitration and the
commencement of litigation. These references indicate that the penalty is pre-judgment.


4
 The court had in its 2012 analysis section, but not in its final judgment section, awarded
Plaintiff an additional 1% per month interest under the PPA. See Dorr v. LaCoste, No. 14-1-11
Bncv, slip op. at 6 (Vt. Super. Ct. Aug. 14, 2012) (decision and final judgment). Plaintiff
submitted a memorandum in response to a January 20, 2016 entry order arguing that he is
entitled to post-judgment interest of 12% under the PPA in addition to the general statutory rate.
See Pl.’s Mem. in Supp.of Interest & Penalties Under the Prompt Pay Act in Resp. to Court’s
Entry Regarding Mot., Feb. 1, 2016.
Therefore, taken as a whole, the court reads § 4007(b) as encouraging the breaching party to
avoid the long road leading to trial.

Moreover, once there is a judgment the importance of the underlying claim fades. In the post-
judgment period, the primary concern is that the non-prevailing party pays the prevailing party
the judgment. There is already a statutory mechanism to encourage the prompt payment of
judgments, the 12% interest in 9 V.S.A. § 41a(a).

As in his motion for attorney’s fees, Plaintiff cites an intermediate appellate court decision from
Pennsylvania in support of his contention that PPA interest continues to accrue post-judgment.
See Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497 (2009). However, that case does not
support his position that he is entitled to the 12% PPA interest in addition to the general statutory
interest. In Zimmerman, the court held that the PPA interest was an exception to, not in addition
to, the general statutory interest. Id. at 502 n.8. Thus, even if the court were to adopt the
analysis of the Pennsylvania court, the result would be the same – Plaintiff would still be entitled
to only 12% interest per annum.

Finally, despite language in this court’s analysis section (but not its final judgment) indicating
the possibility that Plaintiff could recover post-judgment interest under § 4007(b), the Vermont
Supreme Court described the final judgment it was affirming as “includ[ing] pre-judgment
interest and Prompt Pay Act penalties of 1% interest per month from March 7, 2011 … to the
date of the decision.” See Dorr v. LaCoste, No. 2013-408, slip op. at 1 (Vt. June 12, 2013)
(unpublished mem.), available at http://www.vermontjudiciary.org/UPEO2011Present/eo12-
408.pdf (emphasis added). The Vermont Supreme Court’s interpretation of this court’s decision
reinforces its conclusion that the interest available under § 4007(b) is only for the pre-judgment
time period. Even if Plaintiff is correct that the statement was mere dictum, the court’s
independent analysis of the statute leads it to the same conclusion. The court rejects Plaintiff’s
contention that the language in its 2012 analysis section was incorporated into the final
judgment, because such a reading would be contrary to the court’s conclusion here that PPA
interest is limited to the pre-judgment period.

For the above stated reasons, this court concludes that Plaintiff is entitled to the 12% general
statutory interest on judgments provided for in 9 V.S.A. § 41a(a).

                                               Order

WHEREFORE, it is hereby ORDERED that the clerk shall issue the Writ of Execution for a
judgment of $68,715.21 with interest of $15.62 per day from the date of judgment to and
including the date of satisfaction.



Electronically signed on February 04, 2016 at 10:54 AM pursuant to V.R.E.F. 7(d).



___________________________

John W. Valente
Superior Court Judge
