Mark Reenstierna, et al v Currier

2016 DNH 073

• Court: District Court, D. New Hampshire
• Decided: March 31, 2016
• Docket: 14-cv-57-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Mark S. Reenstierna T.H. Reenstierna, LLC

v. Civil No. 14-cv-57-JL Opinion No. 2016 DNH 073 Kenneth D. Currier

MEMORANDUM ORDER

This diversity action requires the court to examine the

contours of New Hampshire’s absolute witness immunity doctrine.

See Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848 (1998).

Plaintiff Mark S. Reenstierna, a real estate appraiser, and his

company, T.H. Reenstierna, LLC, sued appraiser Kenneth D. Currier

based on Currier’s role as an investigator and witness in

disciplinary proceedings instituted against Reenstierna by the

New Hampshire Real Estate Appraisal Board. See N.H. Rev. Stat.

Ann. § 310-B. Those proceedings eventually terminated in

Reenstierna’s favor. Reenstierna claims that Currier should not

have accepted the assignment because he is Reenstierna’s direct

business competitor and that he intentionally submitted a false,

damaging report and testimony to the Board. Before the court is

Currier’s motion for summary judgment, in which he claims that

New Hampshire law gives him absolute immunity from liability.

After oral argument and review of the parties’ submissions, the court finds that New Hampshire law protects Currier and therefore

grants his motion for summary judgment.

I. Applicable legal standard

Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial. See Estrada v. Rhode

Island, 594 F.3d 56, 62 (1st Cir. 2010) (citing Meuser v. Fed.

Express Corp., 564 F.3d 507, 515 (1st Cir. 2009)). A fact is

“material” if it could sway the outcome under applicable law.

Id. (citing Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir.

2008)).

In analyzing a summary judgment motion, the court “views all

facts and draws all reasonable inferences in the light most

favorable to the non-moving party.” Id. The court will not

credit conclusory allegations or speculation. See Meuser, 564

F.3d at 515; Sea Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st

Cir. 1998). With this standard in place, the court turns to the

facts of the case.

2 II. Factual background

Based in Massachusetts, Reenstierna has been a real estate

appraiser in New England and New York for roughly 30 years,

specializing in the appraisal of gas stations and convenience

stores. He is President of plaintiff T.H. Reenstierna, LLC.

Defendant Currier is also a real estate appraiser, licensed in

Maine, New Hampshire, Massachusetts, and New York. He, too, has

expertise in appraisals of gas stations and convenience stores.

In early 2010, Reenstierna was hired by Cumberland Farms to

appraise one of its properties in connection with a taking by the

New Hampshire Department of Transportation for a highway project.

He provided the appraisal to Cumberland Farms in March 2010.

When he signed the appraisal, Reenstierna included the

parenthetical notation “renewing” in the signature line, next to

the number of his then-expired New Hampshire Certified General

Real Estate License. There is no such formal designation in New

Hampshire; one is either licensed or not.

In September 2011, an anonymous grievance was filed against

Reenstierna with the Board.1 The grievance alleged that

Reenstierna was practicing his trade without a license. The

1 It was later learned that the grievance was filed by someone employed by the New Hampshire Department of Transportation.

3 Board reviewed the grievance at its next regularly scheduled

meeting in October, during which it voted to have its grievance

officer investigate the grievance. Consistent with Board

regulations, that grievance officer sought the services of an

expert to provide an appraisal review report of Reenstierna’s

Cumberland Farms appraisal to the Board.2 On November 9, 2011,

the Board requested that Currier provide the Board with such a

report, which he did on February 13, 2012. Currier went beyond

the transgression noted in the original grievance, finding

numerous problems with the substance of Reenstierna’s appraisal.

After Currier was retained, but before he submitted his

report, Mark Correnti assumed the position of grievance officer.

After receiving Currier’s report, Correnti attempted to resolve

the grievance informally, as required by Board rules. Correnti

met with Reenstierna in March 2012. Correnti subsequently

proposed a resolution – Reenstierna surrendering his license –

which Reenstierna rejected in May 2012. At its next meeting,

2 In his Complaint and affidavit, Reenstierna has contended that prior to Currier’s engagement, three other appraisers had reviewed Reenstierna’s work and found no wrongdoing. The court rejects that assertion for two reasons. First, every Board member associated with the investigation has testified that there was no such prior review. Moreover, Reenstierna conceded in interrogatory answers that his claim is based on second-hand information. It is therefore not admissible for summary judgment purposes, leaving the Board members’ testimony unrebutted. See Fed. R. Civ. P. 56(c)(2), (4); Fed. R. Evid. 602, 801 & 802.

4 Correnti provided the Board with Currier’s report and a

recommendation to proceed with a disciplinary hearing. The Board

voted to commence a disciplinary hearing, which was held on July

26, 2012. See N.H. Code R. Rab 203.02(7)(c) (2013).3

Reenstierna moved to dismiss the grievance because, he

argued, the Board had no authority to entertain an anonymous

complaint. The Board denied the motion on November 2, 2012, and

on the same day, ruled that Reenstierna had violated a number of

standards applicable to appraisers, but that only the licensure

issue required discipline. The Board ordered Reenstierna to pay

an administrative fine of $1000 and take fifteen hours of

appraisal-related ethics classes. In addition, Reenstierna was

required, within ten days, to inform all his current clients of

the Board’s findings, and, for the following year, to provide a

copy of the Board’s order to any prospective clients. By motion

received by the Board November 30, 2012, Reenstierna sought

reconsideration and a stay of the sanction. The Board granted

the stay on December 14, 2002, pending its review of the record.4

3 The grievance against Reenstierna was adjudicated prior to the 2013 amendment of the Board’s rules. None of the provisions at issue here were affected beyond a change in section number. For ease of reference, the court cites to the current rules in this order. 4 The court includes these dates as they are relevant to Reenstierna’s claim that the Board’s decision forced him to

5 On April 8, 2013, the Board notified Reenstierna that, upon

reconsideration, it had dismissed the grievance because the facts

failed to establish the presence of professional misconduct.

Reenstierna filed suit in February 2014, alleging that Currier’s

actions: 1) violated New Hampshire’s Consumer Protection Act,

N.H. Rev. Stat. Ann. § 358-A; 2) defamed him; and 3) tortiously

interfered with his advantageous business relations.5

III. Legal Analysis

Reenstierna’s remaining causes of action revolve around the

related themes that Currier’s report and testimony were false and

a product of a bias stemming from their business competition.

While Currier disputes both the bias charge and the claimed

infirmities in his work, his motion for summary judgment is

notify his clients of the Board’s disciplinary order, injuring his business. Given that the Board’s order issued on November 2, that he had a 10-day window in which to make any notification, and that his motion to reconsider was not received until November 30 and was then granted, there is a dispute as to whether he could have acted sooner to prevent the Board’s order from taking effect. Given the resolution of this motion, however, the court need not resolve that dispute. 5 Reenstierna voluntarily dismissed a claim under Massachusetts law that would have been duplicative of count 2.

6 premised solely on New Hampshire’s absolute witness immunity

doctrine.6

“New Hampshire has long recognized that ‘certain

communications are absolutely privileged and therefore immune

from civil suit.’” Provencher, 142 N.H. at 853 (quoting

Pickering v. Frink, 123 N.H. 326, 328 (1983)). Statements made

during judicial proceedings are one class of such privileged

communications. Id. “The absolute witness immunity doctrine

‘reflects a determination that the potential harm to an

individual is far outweighed by the need to encourage

participants in litigation, parties, attorneys, and witnesses, to

speak freely in the course of judicial proceedings.’” Id. at 856

(quoting McGranahan v. Dahar, 119 N.H. 758, 763 (1979)).

The immunity extends to “pertinent pre-litigation communications

between a witness and a litigant or attorney . . . if litigation

was contemplated in good faith and under serious consideration by

the witness, counsel or possible party to the proceeding at the

time of the communication.” Id. at 855. In so holding,

6 While not dispositive, the court notes that Reenstierna’s assertion in his motion papers and at oral argument that Currier admitted that the two are “direct competitors” is based on an incomplete rendering of Currier’s testimony. While Currier stated, “I was in direct competition.” His testimony continued, “Appraisers compete with other appraisers, so we're all in competition with one another.”

7 Provencher followed the form of the Restatement (Second) of Torts

§ 588 (1977), which provides the caveat that “[t]he bare

possibility that the proceeding might be instituted is not to be

used as a cloak to provide immunity for defamation when the

possibility is not seriously considered.” Id. at cmt. e.

Here, the parties are in agreement that the Board hearing

constitutes a “judicial proceeding” for purposes of the immunity

analysis. Thus any statements Currier made at the hearing are

absolutely privileged. Reenstierna, however, claims that

Currier’s other activities, including accepting the assignment

and preparing his report, are not protected because at the time

Currier accepted the assignment and prepared and submitted his

report, no proceeding against Reenstierna was contemplated.

Instead, he argues, immunity is foreclosed because Currier’s

actions caused the Board to initiate the disciplinary

proceedings. But as the court explains below, a full and fair

reading of Provencher – a case also involving appraisers serving

as experts in a government taking – undermines this argument.

The plaintiff in Provencher had agreed to sell the state of

New Hampshire 165 acres of land for a highway project. Id. at

850. The agreement called for the state to take the property by

eminent domain if the parties could not agree on a sale price.

Id. Pursuant to the agreement, the State hired the defendant

8 appraisers, who appraised plaintiff’s property at roughly $1

million. Id. The plaintiff refused to sell based on the state’s

appraisal, and they entered eminent domain proceedings. Id.;

N.H. Rev. Stat. Ann. § 498-A:4. The defendant appraisers

testified in accordance with their appraisals as experts

regarding the value of plaintiff’s land. The plaintiff presented

testimony that the land’s value exceeded $7 million. Id. The

jury determined that the property was worth approximately $4

million. Id. The plaintiff sued the appraisers under a variety

of legal theories, alleging several breaches of duty owed to him

as a putative third-party beneficiary to the contract with the

state. Id.

The trial court dismissed the suit, finding the appraisers

immune from suit. The New Hampshire Supreme Court affirmed,

finding “that it is clear that the parties seriously contemplated

litigation” even though the state had not initiated eminent

domain proceedings at the time the appraisals were complete. Id.

at 855. The Court based this conclusion both on the parties'

written agreement and the provisions of the Eminent Domain

Procedure Act (EDPA), N.H. Rev. Stat. Ann. § 498-A.

While there is no equivalent agreement in this case spelling

out the likelihood of a judicial proceeding, certain observations

made by the Court in Provencher with respect to the statutory

9 scheme inform the analysis in this case because the procedures

mandated by the EDPA bear a similarity to the procedural rules

under which the Board operates. The Provencher Court first

recognized that the EDPA requires the state to attempt a

voluntary purchase prior to an eminent domain taking, and may

only commence condemnation proceedings if the landowner rejects

the state's purchase offer. 142 N.H. at 856. Further, the state

must base its offer on a professional appraisal. Id. Thus,

according to the Court, at the time the defendants completed

their appraisals, the EDPA “specifically state[d] that litigation

will be commenced if the parties fail to mutually agree on a

purchase price.” Id. Under this set of circumstances, the Court

held, absolute immunity applied to the pre-litigation appraisals

“because an eminent domain proceeding was contemplated at the

time of the appraisals and the appraisals were relevant to that

proceeding.” Id.

Here, Board rules require that if an appraisal is the

subject of a grievance, it must be evaluated for conformity with

Uniform Standards of Professional Appraisal Practice. N.H. Code

R. Rab 203.02(b)(4) (2013). Toward that end, Correnti’s

predecessor retained Currier.7 Board Rules require the

7 Although the Rules allow the complaint officer to evaluate the appraisal at issue, Correnti is a residential appraiser. He

10 investigator to attempt informal resolution with the appraiser,

but only after the investigation – which here included Currier’s

report -- is complete. Id. at 203.02(b)(5). As noted above, no

resolution was reached. Pursuant to the Board's rules, Correnti

then recommended to the Board that it proceed with a disciplinary

hearing. See id. at 203.02(b)(6). No informal resolution having

been reached, the Board then voted to “commence an adjudicative

hearing if the evidence suggests that the appraiser . . . engaged

in misconduct and an informal resolution was not accepted by the

appraiser or the board.” Id. at 203.02(b)(7)(c). The

similarities between the regulatory schemes at issue in

Provencher and in this case suggest a similar immunity analysis.

Reenstierna argues that immunity does not apply because at

the time Currier accepted his appointment and performed his

assigned role, no disciplinary proceeding was “contemplated,”

within the meaning of Provencher. The court disagrees. Board

rules require an initial review to determine whether a complaint

“should be investigated further or dismissed.” N.H. Code. R. Rab

203.02(b)(1). In the court’s view, the Board’s decision to

“investigate further” moved the matter comfortably past “the bare

possibility that the proceeding might be instituted.”

testified that he lacks experience appraising gas stations and convenience stores.

11 Provencher, 142 N.H. at 855 (quoting Restatement (Second) of

Torts § 58, cmt. e). Moreover, Currier was in no different a

position than the defendant appraisers in Provencher. Just as

the eminent domain trial in Provencher only became a concrete

reality when the mandatory pre-trial takings negotiations failed,

Reenstierna’s formal disciplinary hearing only took place after

the required informal resolution efforts failed. But such

“concreteness” is not a predicate for finding that proceedings

were “actually contemplated” and “under serious consideration.”

At oral argument, Reenstierna pressed his argument that the

mere act of accepting the assignment – apart from any work

Currier performed – is a non-immunized basis for liability. But

Provencher holds otherwise. Id. at 855 (“Immunity for expert

witnesses ‘extends not only to their testimony, but also to acts

and communications which occur in connection with the preparation

of that testimony.’”) (quoting Bruce v. Byrne-Stevens & Assocs.

Eng'rs, Inc., 776 P.2d 666, 673 (Wash. 1989) (emphasis added)).

Ultimately, as the structure of the EDPA and the relevant

facts warranted the application of immunity to the defendants in

Provencher, the undisputed facts here and the similar structure

12 of the Board rules immunize Currier’s actions, reports and

testimony.8

IV. Conclusion

Based on the foregoing, the court finds that Currier is

absolutely immune from a suit based on his acceptance of the

assignment to review Reenstierna’s appraisal and his analysis of

that appraisal. Accordingly, defendant’s motion for summary

judgment9 is GRANTED.

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: March 31, 2016

8 In a sur-reply, Reenstierna equates Currier to an investigator in criminal cases to argue that only qualified immunity could apply in this case. He relies on Stinson v. Gauger, 799 F.3d 833 (7th Cir. 2015), a case brought under 42 U.S.C.§ 1983 by a wrongfully convicted defendant against detectives and experts alleging fabrication of testimony. There, the Court rejected application of absolute immunity to actions taken during the investigative phase of the murder case. This court declines to follow Stinson. Most notably, the cited opinion was vacated following the Court’s grant of en banc review. See Stinson v. Gauger, Nos. 13-3343, 3346 & 3347, U.S. App. Lexis 23012 (Dec. 3, 2015). Regardless, Stinson is inapposite, as it applies neither New Hampshire law, which controls this case and upon which Provencher relied, nor the Restatement, upon which Provencher also relied. 9 Doc. no. 27.

13 cc: Richard B. Reiling, Esq. Roger B. Phillips, Esq. Russell F. Hilliard, Esq.