Birchwood Land Company, Inc. v. Ormond Bushey & Sons, Inc., 82 A.3d 539

Birchwood sued Ormond for breach of contract over sand removal; Sand removed appeared to be excess material; Lien filed by contractor and later escrow arrangement; Paving work paid by Birchwood to third party due to sand dispute; Court awarded sand value damages offset by unpaid contract balance, no punitive damages, and no PPA penalties or attorney’s fees; Birchwood and Bushey cross-appealed on damages, penalties, and slander of title.
Court found contractor breached by removing sand without authorization; sand became personal property after separation; damages measured as conversion value rather than real property damage; punitive damages not warranted.
Court treated sand claim as conversion measure, awarded fair market value of sand; retained ability to offset against contract balance; slander of title claim dismissed for lack of malice and proper lien scope.
Final judgment: contractor awarded net damages after offset, with prejudgment interest; PPA penalties and attorney’s fees denied; slander of title claim rejected; no substantial prevailing party determination essential to award of attorney’s fees.
On appeal, Birchwood challenged damages calculation, punitive damages denial, prejudgment interest, and slander; Bushey challenged interest and fees determinations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Damages for sand loss—proper measure?	Birchwood argues damages include transport and spreading costs.	Bushey argues only sand value damages; additional costs speculative.	Fair market value of sand at conversion is proper measure.
Punitive damages available?	Birchwood seeks punitive damages for willful misconduct.	Bushey acted without malice; no punitive damages.	No punitive damages awarded.
Prejudgment interest under PPA?	Birchwood entitled to interest despite good-faith offset.	Interest may be barred by good-faith counterclaims.	Contractor entitled to prejudgment interest on net judgment.
Slander of title viability?	Birchwood argues lien over broad and false.	Lien supported by statute and in good faith.	Slander of title claim rejected; lien proper in scope and not made with malice.

Tour Costa Rica v. Country Walkers, 171 Vt. 116 (2000) (damages for breach of contract may include incidental/consequential losses)
Stowe Club Highlands, 171 Vt. 155 (2004) (punitive damages require willful, wanton, or fraudulent torts)
Fletcher Hill, Inc. v. Crosbie, 178 Vt. 77 (2005) (substantially prevailing party is a discretionary, flexible determination)