NEW ENGLAND BACKFLOW, INC. & a.
DANIEL GAGNE & a.
Argued: September 12, 2019
& Reno, P.A., of Concord (Jeremy D. Eggleton on the brief
and orally), for the plaintiffs.
J. MacDonald, attorney general (Emily C. Goering, assistant
attorney general, on the brief and orally), for the
plaintiffs, New England Backflow, Inc. (NEB) and Paul
Whittemore, appeal an order of the Superior Court
(Kissinger, J.) dismissing several of the
plaintiffs' claims against the defendants, the New
Hampshire Office of the Fire Marshall (OFM) and Jeremy Cyr,
in his official capacity as chief inspector of OFM, for
failure to state a claim upon which relief may be granted.
Specifically, the plaintiffs challenge the trial court's
dismissal of their declaratory judgment requests and their
claims of unconstitutional taking, malicious prosecution, and
abuse of process. They argue that the trial court erred by:
(1) concluding that the plaintiffs' declaratory judgment
requests were inconsistent with the applicable statutory
language without holding an evidentiary hearing; (2) ruling
that the plaintiffs' request for declaratory judgment
relating to a cease and desist order issued by OFM was moot;
(3) concluding that Whittemore did not have a vested right to
perform his professional work necessary to support the
plaintiffs' takings claims; and (4) ruling that the
plaintiffs failed to state a claim for malicious prosecution
and abuse of process.
affirm the trial court's order because the declarations
the plaintiffs seek are inconsistent with the plain and
ordinary meaning of the relevant statutory language, their
request for the cease and desist declaration is moot, and the
plaintiffs' remaining claims fail to state a claim upon
which relief may be granted.
assume the following facts, as alleged in the plaintiffs'
complaint, to be true. Cluff-Landry v. Roman Catholic
Bishop of Manchester, 169 N.H. 670, 671 (2017).
Whittemore has been a water system operator certified by the
New Hampshire Department of Environmental Services (DES)
since 1992 (hereinafter, certified operator). See
RSA 332-E:3, I (2017) (providing that "[n]o water
treatment plant or water distribution system shall be
operated" unless it is "supervised by a certified
operator"), :6, I (2017) (granting DES the authority to
issue certificates to operators); see also RSA
332-E:1, IV (2017) (defining "[o]perator" as
"the individual who has full responsibility for the
operation of a water treatment plant or water distribution
system and any individual who normally has charge of an
operating shift, or who performs important operating
functions including analytical control"). In 1994,
Whittemore started a business, now known as NEB, which
installs, repairs, tests, and replaces backflow prevention
devices, also known as backflow preventers, for private and
backflow preventer is a one-way valve that permits water to
flow only in a single direction. Its purpose is to prevent
water that has been exposed to potential contaminants from
flowing back into the public water system. Backflow
preventers are installed to prevent, for example, water in
sprinkler, fire suppression, or heating systems from flowing
back into the public water system. Backflow preventer
installation often requires the installation of additional
ancillary equipment, including water meters, meter horns,
expansion tanks, and suspension devices.
2013, Daniel Gagne, a licensed plumber, informed OFM, which
assists DES in enforcing the state's plumbing licensure
requirements, see RSA 153:28, IV (Supp. 2018), that
it should investigate NEB for engaging in plumbing without a
license. OFM initiated an investigation and dispatched an
inspector to speak with Whittemore about NEB's
activities. Whittemore produced copies of his DES
certification and asserted that he was certified to conduct
backflow prevention testing, installation, repair, and
replacement pursuant to RSA 485:11 (Supp. 2018) and RSA
chapter 332-E (2017), and that he was exempt from statutory
plumbing licensure requirements.
June, NEB installed backflow preventers, water meters, and
other equipment for the Town of Pittsburg, which included
installation of these devices in private buildings served by
the Pittsburg public water supply. During the installation,
Whittemore informed the Pittsburg water supply operator of a
number of preexisting code violations, which, according to
the plaintiffs' complaint, were "beyond the scope of
Mr. Whittemore's work or authority to address." The
water supply operator told Whittemore that he would address
these issues independently.
September, Cyr and another OFM inspector went to Pittsburg
after receiving a new complaint from Gagne regarding
NEB's work. There, they identified a number of plumbing
code violations in buildings where NEB had performed its
work. Following this inspection, Cyr issued a cease and
desist order to NEB, demanding that the company cease
plumbing without a license.
receipt of the cease and desist order, Whittemore met with
Cyr and OFM's supervisor of building safety and
construction. Whittemore explained that the alleged code
violations in Pittsburg predated his work there and that he
had notified the Town's water supply operator of the
violations. Nonetheless, Cyr maintained that NEB's work
was not exempt from the plumbing licensure requirements.
According to OFM's summary of this meeting, however, both
parties agreed that "the statute as written is too wide
and ambiguous for interpretation without rules written to
properly address the intent . . . of the law." The
parties also agreed that, while the interpretation of the
statute was under review, a licensed plumber would review
NEB's work to ensure code compliance.
a master plumber licensed in New Hampshire and approved by
OFM reviewed all of the work performed by NEB. The master
plumber found that NEB had not committed any code violations
during its work in Pittsburg. Nevertheless, OFM continued to
investigate NEB's work in Pittsburg until June 2014.
Gagne continued to complain to OFM about NEB's work. In
July 2015, he asserted that he lost potential business with a
retail store in Hillsborough to NEB, and that "towns
like Peterborough" had told him that NEB handles their
repairs. Shortly thereafter, Cyr called NEB and stated that
he had received complaints from Hillsborough and Peterborough
that NEB was engaging in plumbing without a license.
30, 2015, at the Hillsborough retail store, an NEB employee
tested and removed a defective backflow preventer that
connected the building's water system to an outside
landscaping sprinkler. The store declined to replace the
backflow preventer. Consequently, the NEB employee capped the
open pipe to prevent environmental contaminants from entering
into the building's drinking water system due to the
absence of the backflow preventer. Once Cyr identified the
NEB employee, he informed OFM's chief that he planned to
seek a "warrant for plumbing without a license"
based upon the employee's work at the store. See
RSA 153:37, I (2014). In late August, following another
complaint from Gagne, Cyr drafted an affidavit alleging that
the employee was plumbing without a license.
November, in response to a request submitted by Whittemore,
OFM informed Whittemore that it would conduct an internal
review of Cyr's conduct in connection with his
investigation of NEB. Following the initiation of the
internal review, Cyr forwarded his affidavit to OFM's
prosecutor. In December 2015, the prosecutor executed a
warrant affidavit for the arrest of the employee for plumbing
without a license when he cut and capped the pipe at the
Hillsborough store. OFM subsequently arrested the employee.
March 2016, the plaintiffs filed a complaint against the
defendants, alleging, inter alia: (1) a claim for
declaratory judgment, in which the plaintiffs requested that
the trial court make several declarations relating to the
plaintiffs' rights to perform backflow prevention work
without a plumbing license under RSA 485:11 and RSA 153:36
(Supp. 2018) and the legality of the cease and desist order;
(2) a claim of unconstitutional taking for depriving the
plaintiffs of their right to perform backflow prevention
work; and (3) claims of malicious prosecution and abuse of
process for investigating NEB and arresting its employee.
defendants moved to dismiss the plaintiffs' complaint.
The trial court granted the defendants' motion as to the
claims now before us. The plaintiffs moved for
reconsideration, and the trial court denied the motion. This
Standard of Review
reviewing a trial court's grant of a motion to dismiss,
we consider whether the allegations in the plaintiffs'
pleadings are reasonably susceptible of a construction that
would permit recovery. Clark v. N.H. Dep't of
Emp't Sec., 171 N.H. 639, 645 (2019). We assume the
plaintiffs' pleadings to be true and construe all
reasonable inferences in the light most favorable to them.
Id. However, we need not assume the truth of the
statements in the plaintiffs' pleadings that are merely
conclusions of law. Id. We then engage in a
threshold inquiry that tests the facts in the complaint
against the applicable law. Id. We will uphold the
trial court's grant of a motion to dismiss if the facts
pleaded do not constitute a basis for legal relief.
as here, the parties' arguments require us to engage in
statutory interpretation, our review is de novo.
Id. at 650. When interpreting a statute, we first
look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary
meaning. Id. at 651. We interpret legislative intent
from the statute as written, and will not consider what the
legislature might have said or add language that the
legislature did not see fit to include. Id. When the
language of a statute is plain and unambiguous, we need not
look beyond the statute itself for further evidence of
legislative intent. Id. On the other hand, when the
language of a statute is ambiguous, we look to the
legislative history to aid our interpretation of the meaning
of the statutory language. Green v. Sch. Admin. Unit
#55, 168 N.H. 796, 801 (2016).