Profit Recovery Group, USA, Inc. v. Commissioner, Department of Administrative & Financial Services

ALEXANDER, J.,

with whom SAUFLEY, C.J., and CLIFFORD, J. join, dissenting.

[¶ 35] I concur in that portion of the Court’s opinion addressing the State’s appeal and affirming the jury award. I respectfully dissent from that portion of the Court’s opinion addressing the PRGU cross-appeal and vacating the trial court’s judgment by holding that a waiver of sovereign immunity and an obligation of the State to pay interest may be implied from statutes generally covering pre-judgment and post-judgment interest. The issue is significant. By the time this case is concluded, pre-judgment and post-judgment interest obligations, if applicable, may approach $200,000.

[¶ 36] The trial court’s decision that the doctrine of sovereign immunity bars an award of interest must be reviewed in accordance with several principles of law that we have established. First, an award of interest is not an inherent part of any money judgment; any award of interest “is based solely on statutory law.” Austin v. Austin, 2000 ME 61, ¶ 8, 748 A.2d 996, 999; Ginn v. Penobscot Co., 342 A.2d 270, 276 (Me.1975).

[¶ 37] Second, statutory exceptions to sovereign immunity are strictly construed with immunity as the rule and any exceptions narrowly interpreted. New Orleans Tanker Corp. v. Dep’t of Transp., 1999 ME 67, ¶¶ 5-6, 728 A.2d 673, 675; Lovejoy v. State, 544 A.2d 750, 751 (Me.1988).

[¶ 38] Third, because sovereign immunity is “one of the highest attributes inherent in the nature of sovereignty[,] ... generally, a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity.” Cushing v. Cohen, 420 A.2d 919, 923 (Me. 1980) (quotation marks omitted).

[¶ 39] Fourth, waiver of sovereign immunity will not be inferred by inaction, by procedural default, or by a general rather than a limited appearance in an action. Maynard v. Comm’r of Corr., 681 A.2d 19, 22-23 (Me.1996); Rutherford v. City of Portland, 494 A.2d 673, 675 (Me.1985); Drake v. Smith, 390 A.2d 541, 543 (Me. 1978); Turner v. Collins, 390 A.2d 537, 540 (Me.1978).

[¶ 40] The contract at issue here obligated the State to make payments to PRGU, only on a contingent basis, at set percentages of funds recovered to the State as a result of PRGU’s auditing activities. The contract included no provision for payment of interest. PRGU relies only on the general statutes authorizing recovery of interest in civil damages actions to support its claim for payment of pre-judgment and post-judgment interest. 14 M.R.S.A. §§ 1602, 1602-A (2003). There is no statute by which the Legislature has waived sovereign immunity to permit recovery of interest in addition to any damage's award against the State. Thus, any authority to require the State to pay interest must be inferred.

[¶ 41] Our precedents, cited above, tell us that exceptions to or waiver of sovereign immunity must be specific and cannot be easily inferred. In Turner v. Collins, the predecessors to the same interest statutes at issue here were cited to support a claim for recovery of interest to add on to a statutorily limited damages award. See *1247390 A.2d at 539. We held that a statutory limitation in an authorization for a suit against the State did not, by implication, allow an award of interest in excess of the $250,000 limit, despite the existence of the generally applicable interest recovery statutes. Id. at 540. Thus, no waiver of sovereign immunity is provided by the general interest statutes. Any authorization to recover interest must be found from some source; it cannot derive from default, inference, or waiver. There is no source here authorizing recovery of interest. The State contracted to pay according to a schedule of contingent fees and nothing more.

[¶ 42] Citing Drake, 390 A.2d at 545, the Court states that: “We have suggested that a general statute allowing the State to enter into contracts implies a waiver of sovereign immunity by the Legislature when the State is sued for breach of that contract.” This view may support PRGU’s claim for payments earned in accordance with the contract, but it does not support expanding the State’s contracted obligation to include interest. Further, noting adherence to the above view of the law in some other states, Drake states:

In the case at bar we find no occasion to decide whether or not the law of Maine should recognize that a legislative waiver of the sovereign’s immunity from suit may be found implicit in a general scheme plainly contemplating that the State will become party to particular kinds of contracts.

Id.

[¶ 43] The Drake opinion then goes on to state: “Hypothesizing, without holding, such an extension of Maine law, we conclude that on the facts of this case no such waiver by implication may justifiably be found.” Id. Thus, the Drake opinion explicitly did not adopt the view stated by the Court. Drake construed that view as “an extension of Maine law.”

[¶ 44] I concur with the Court that the statutory authority of the State to enter into the contract necessarily implies authority to allow a suit seeking payment for compensation earned pursuant to the contract. That payment recovery authority, however, does not extend to interest.

[¶ 45] The AFAB cases do not require payment of interest by a waiver of sovereign immunity. As the Court’s opinion notes, in the earlier AFAB cases, AFAB II7 and AFAB II8 sovereign immunity was raised only in relation to an overall defense to the damages claim, not as a separate discrete defense against an order for payment of interest — which the trial court had declined to order. AFAB IV,9 over three dissents, awarded interest, but did so only on a finding that the trial court had erred in its finding that there was good cause to waive payment of interest pursuant to the interest statutes. Sovereign immunity was not discussed.

[¶ 46] Accordingly, I would conclude that absent express statutory authority, the trial court correctly denied the request for pre- and post-judgment interest. Without a demonstrated exception to the doctrine of sovereign immunity, the court lacked authority to order interest payments to be made by the State. Thus, I would affirm the judgment of the trial court in all respects.

. A.F.A.B., Inc. v. Town of Old Orchard Beach, 657 A.2d 323, 325 (Me.1995).

. A.F.A.B., Inc. v. Town of Old Orchard Beach, 639 A.2d 103, 105-06 (Me.1994).

. A.F.A.B., Inc. v. Town of Old Orchard Beach, 2001 ME 128, ¶¶ 11, 13, 777 A.2d 831, 836.