State v. Peter Salvucci & Sons, Inc., 6105-

• Court: Supreme Court of New Hampshire
• Writing for the Court: KENISON
• Citation: 111 N.H. 259,281 A.2d 164
• Parties: STATE v. PETER SALVUCCI & SONS, INC. a.
• Docket Number: No. 6105-,6105-
• Decision Date: 29 July 1971

Page 164

281 A.2d 164 111 N.H. 259 STATE
v.
PETER SALVUCCI & SONS, INC. No. 6105-a. Supreme Court of New Hampshire. July 29, 1971.

[111 N.H. 260]

Page 165

Warren B. Rudman, Atty. Gen., and Alexander J. Kalinski, Manchester, Sp. Counsel, for the State.

Devine, Millimet, McDonough, Stahl & Branch and Robert A. Backus, Manchester, for defendant.

KENISON, Chief Justice.

The sole question presented in this case is whether the superior court had jurisdiction under RSA 491:8 to add interest and costs to a verdict for breach of contract recovered against the State. It is a question of first impression in this court.

Peter Salvucci & Sons, Inc., was the successful bidder on two road building contracts entered into with the State of New Hampshire. During the course of the construction Salvucci informed the State that it was incurring extra expense because of the State's alleged failure to deliver certain free materials as provided by the contract. After unsuccessful negotiations, Salvucci made a formal demand on the State for relief, which was denied. On June 2, 1961, Salvucci brought suit on the construction contract pursuant to RSA 491:8.

Long delays preceded the trial of the case. Salvucci requested depositions of the State's key witnesses in October, 1961, but the depositions were not taken until the following year, pursuant to subpoena. One year after the depositions, noting that the case had been pending 'for a long tiem,' counsel for Salvucci sought to have it referred to a master. The State was not agreeable to this proposition. Although the trial was subsequently scheduled for June of 1964, the State successfully moved to continue the case on the grounds that its personnel were needed on job sites and upon the grounds that the depositions of Ralph and Peter Salvucci had not been taken. Ultimately, in March, 1966, at the suggestion of the clerk of court, the State agreed to trial before a master.

On March 31, 1967, after trial, the Master (Charles J. Flynn, Esq.) found for Salvucci and rendered a verdict of $111,114.41. The Court (Bownes, J.) then granted its motion for judgment on the verdict plus costs and interest from the date it made formal [111 N.H. 261] demand for payment. The State appealed to this court, without arguing the issue of the allowance of interest and costs, and we affirmed. Peter Salvucci & Sons, Inc. v. State, 110 N.H. 136, 268 A.2d 899 (1970). A motion for rehearing was denied.

Subsequently, the State filed a petition for writ of certiorari alleging that through accident, mistake or misfortune, it had failed to raise and argue the issue of payment of interest and costs. Relying on the doctrine of sovereign immunity it argued that the superior court had no jurisdiction to award interest and costs because RSA 491:8 does not expressly or impliedly permit imposition of interest or costs. Noting that it is established law in New Hampshire that the State is not to be subjected to costs and interest unless it waives its immunity by statute, we granted the State's petition for a writ of certiorari to the superior court. State v. Peter Salvucci & Sons, Inc., 110 N.H. 502, 272 A.2d 854 (1970).

We have had numerous recent occasions to consider the scope of the doctrine of sovereign immunity in this State. Eastern Grain Co. v. Currier, 98 N.H. 495, 103 A.2d 84 (1954); Public Service Co. v. State, 102 N.H. 54, 149 A.2d 874 (1959); Holte v. Rondeau, 105 N.H. 304, 199 A.2d 100 (1964); Gossler v. Manchester, 107 N.H. 310, 221 A.2d 242 (1966); Krzysztalowski v. Fortin, 108 N.H. 187, 230 A.2d 750 (1967). The doctrine remains a settled part of our present law, despite mounting criticism both from within the State and

Page 166

from without, e.g., N.H. Judicial Council, Twelfth Report 12, 13 (1968); Cramton, Non-Statutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter, and Parties Defendant, 68 Mich.L.Rev. 389 (1970); Davis, Sovereign Immunity Must Go, 22 Ad.L.Rev. 383 (1970); Sherry, The Myth That The King Can Do No Wrong: A Comparative Study of the Sovereign Immunity Doctrine in the United States and New York Court of Claims, 22 Ad.L.Rev. 39 (1969). As applied to the question raised in this case, our precedents hold that the State is not deemed to have waived its immunity to interest or costs unless it does so expressly or 'by implication of such reasonable clarity that the courts need not strain the words of the statute to reach such a conclusion.' E.g., Eastern Grain Co. v. Currier, 98 N.H. 495, 496, 103 A.2d 84, 85 (1954); Holte v. Rondeau, 105 N.H. 304, 306-307, 199 A.2d 100, 102 (1964). Under this standard the question of the waiver of sovereign immunity in this case resolves itself into a question of statutory interpretation. Krzysztalowski v. Fortin, 108 N.H. 187, 230 A.2d 750 (1967).

[111 N.H. 262] The defendant argues first that RSA 491:8 does provide for the imposition of interest and costs as against the State either expressly or by reasonable...