United States District Court, D. New Hampshire
Mark S. Reenstierna T.H. Reenstierna, LLC
Kenneth D. Currier Opinion No. 2016 DNH 073
Richard B. Reiling, Esq.
Roger B. Phillips, Esq.
Russell F. Hilliard, Esq.
Joseph N. Laplante, United States District Judge.
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.
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. The grievance alleged that Reenstierna was practicing his trade without a license. The 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. 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, 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).
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 ...