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.

Paul M. Lacoste,

Debra J. Lacoste,

Defendants

DECISION ON MOTION

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. Defendant2appealed 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Vermont Supreme Court’s unpublished opinion, Dorr v. LaCoste, No. 2013-408 (Vt.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 postjudgment 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 postjudgment 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