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New England Backflow, Inc. v. Gagne

Supreme Court of New Hampshire, Merrimack

November 13, 2019

NEW ENGLAND BACKFLOW, INC. & a.
v.
DANIEL GAGNE & a.

          Argued: September 12, 2019

          Orr & Reno, P.A., of Concord (Jeremy D. Eggleton on the brief and orally), for the plaintiffs.

          Gordon J. MacDonald, attorney general (Emily C. Goering, assistant attorney general, on the brief and orally), for the defendants.

          DONOVAN, J.

         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.

         We 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.

         I. Facts

         We 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 public entities.

         A 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.

         In May 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.

         In 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.

         In 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.

         Upon 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.

         Thereafter, 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.

         Meanwhile, 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.

         On July 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.

         In 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.

         In 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.

         The 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 appeal followed.

         II. Standard of Review

         When 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. Id.

         When, 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).

         III. ...


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