State v. Peter Salvucci & Sons, Inc.

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

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.

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 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 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).

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 implication.

RSA 491:8 under which this action was brought provides in relevant part: 'Actions Against State: The superior court shall have jurisdiction to enter judgment against the State of New Hampshire founded upon any express or implied contract with the state * * *.' The statute itself affords no other guidance as to the scope of such jurisdiction except to state that the jurisdiction conferred includes any set-off, claim, or demand whatsoever on the part of the State against any plaintiff commencing an action under the section. Id. It is fundamental that in determining the intended scope of the 'jurisdiction to enter judgment' the statute is not analyzed out of context, but with reference to other applicable statutes and to the general legislative history and intent. State ex rel. Fortin v. Harris, 109 N.H. 394, 395, 253 A.2d 830 (1969); O'Brien v. Manchester, 84 N.H. 492, 495, 152 A. 720, 722 (1930).

At the time that RSA 491:8 was enacted, RSA 524:1 regulating the form of judgments, provided as follows: 'Form. Interest. (I)n rendering judgment for the debt or damages found by verdict, report of an auditor or otherwise, interest shall be added from the time of such finding to the rendition of judgment.' (Emphasis added). In 1963 this statute was amended with the result that interest was allowed from the date that suit was instituted. Laws 1963, ch. 293; RSA 524:1-b (supp.); Hanchett v. Brezner Tanning Co., 107 N.H. 236, 241, 221 A.2d 246, 249 (1966); Pepin v. Beaulieu, 102 N.H. 84, 89, 151 A.2d 230, 235 (1959). Under RSA 524:1 (supp.) as it now stands interest is to be added in all cases at least from the date of the writ. After making special provisions for actions on debts or accounts stated in which liquidated damages are sought, RSA 524:1-b (supp.) provides, 'Interest from Date of Writ. In all other civil proceedings * * * in which a verdict is rendered or a finding is made for pecuniary damages to any party * * * for any * * * type of loss for which damages are recognized, there shall be added forthwith by the clerk of court to the amount of damages interest thereon from the date of the writ * * *.' (Emphasis added).

In these statutes the term 'judgment' is used in contrast to the term 'damages' and includes the award of interest. Ordinarily, upon a verdict for damages and upon motion of a party, interest is to be awarded as a part of all judgments. RSA 524:1-c (supp.) shows that costs are similarly included within the term 'judgment.' Thus, reading RSA 491:8 in conjunction with RSA 524:1 (supp.) indicates that superior court jurisdiction 'to enter judgment against the state' in actions upon contracts includes the power to award interest and costs.

The issue in Holte v. Rondeau, 105 N.H. 304, 199 A.2d 100 (1964), is closely analogous to that raised in the present case and the decision there is instructive in determining the construction of RSA 491:8. That case raised the question whether interest and costs were recoverable against the State in actions brought under former RSA 110-A:77, subsequently repealed. The statute authorized persons to sue for 'damages' caused by a member of the National Guard acting pursuant to RSA ch. 110. It provided that 'The superior court shall have jurisdiction to enter judgment against the state for the amount of the damages found to have been suffered * * *.' Laws 1957, ch. 147:1, repealed by Laws 1961, ch. 64:1. (Emphasis added). Relying on the specific phrasing of that statute, and legislative history, we found no clear implication that the legislature intended to waive the State's immunity from costs and interest. Holte v. Rondeau, supra at 306-307, 199 A.2d at 102. RSA 491:8, on the other hand, does not...