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Reenstierna v. Currier

United States Court of Appeals, First Circuit

October 13, 2017

MARK S. REENSTIERNA; T.H. REENSTIERNA, LLC, Plaintiffs, Appellants,
v.
KENNETH D. CURRIER, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Hon. Joseph N. Laplante, U.S. District Judge

          Richard B. Reiling, with whom Bottone Reiling was on brief, for appellant.

          Russell F. Hilliard, with whom Upton & Hatfield, LLP was on brief, for appellee.

          Before Lynch, Lipez, and Barron, Circuit Judges.

          LIPEZ, Circuit Judge.

         Plaintiff-appellant Mark Reenstierna, a real estate appraiser, was the subject of a disciplinary hearing before the New Hampshire Real Estate Appraisal Board ("the Board"). In that hearing, the Board considered as evidence a report on Reenstierna's work written at the Board's request by defendant-appellee Kenneth Currier. After convincing the Board to reconsider an earlier unfavorable decision and dismiss the grievance charges, Reenstierna sued Currier, accusing him of defamation and other torts. The district court granted summary judgment in favor of Currier, concluding that New Hampshire's absolute witness immunity rule extends beyond testimony provided at an administrative hearing to include statements in the report that Currier prepared for the Board. We affirm.

         I.

         Reenstierna, the president of Reenstierna LLC, works as a real estate appraiser and consultant in New York and New England, specializing in the appraisal of gas stations and convenience stores. Currier, also a real estate appraiser with expertise in gas stations and convenience stores, is licensed in Maine, Massachusetts, New Hampshire, and New York. The two men are the top "go-to" people in the region for parties seeking such appraisals.

         Cumberland Farms, a gas station and convenience store chain, hired Reenstierna in early 2010 to appraise one of its properties in the city of Rochester that was the subject of a taking by the New Hampshire Department of Transportation. Reenstierna provided his appraisal to Cumberland Farms in March. On the signature line of the appraisal next to his then-expired New Hampshire Certified General Real Estate Appraiser licensing number, Reenstierna included a parenthetical notation that said, "Renewing."[1]

         Specifically citing Reenstierna's appraisal of the Cumberland Farms site, an employee of the New Hampshire Department of Transportation filed an anonymous grievance against Reenstierna with the Board in September 2011, complaining that he was working as a real estate appraiser without the necessary licensure. The Board subsequently voted to investigate the complaint and appointed a complaint officer, Mark Correnti, who asked Currier to provide a report on Reenstierna's Cumberland Farms appraisal.

         At the time Correnti hired him, Currier was a competitor of Reenstierna's throughout New England, including in New Hampshire. Currier had previously performed approximately twenty appraisals for Cumberland Farms over the preceding decade and remained on Cumberland Farms' list of approved appraisers from whom the company would accept bids.[2]

         In addition to faulting Reenstierna for performing the appraisal without a license, Currier's report criticized the quality of the appraisal itself, citing six flaws. After receiving Currier's report, Correnti attempted to resolve the grievance against Reenstierna informally in accordance with Board rules. When Reenstierna rejected Correnti's proposal that he surrender his license, Correnti recommended to the Board that it proceed with a disciplinary hearing. The Board accepted the recommendation, and a hearing was held in July of 2012.

         Initially, the Board ruled that Reenstierna had violated the Uniform Standards of Professional Appraisal Practice's "Ethics Rule, " which bars an individual from indicating that he is a licensed appraiser when he is not.[3] The Board officially "reprimanded" Reenstierna in a "Final Decision and Order." It further ordered him to (1) pay an "administrative fine in the amount of $1, 000"; (2) "complete a 15-hour [industry standards] course"; (3) "furnish a copy of the Final Decision and Order to any current employer for whom [he was] perform[ing] services" within ten days; and (4) "furnish [for the following year] a copy of [the] Final Decision and Order to any employer to which [he] may apply for work as an appraiser or for work in any capacity which requires appraisal knowledge." The Board also "ordered that [the] Final Decision and Order shall become a permanent part of . . . Reenstierna's file, which is maintained by the Board as a public document."

         The disciplinary sanctions were stayed in December 2012, however, after Reenstierna filed a motion asking the Board to reconsider its findings. In April 2013, the Board notified Reenstierna that it was dismissing the original complaint against him, stating that the evidence and testimony presented were not sufficient to establish the presence of professional misconduct.

         In February 2014, Reenstierna filed a diversity suit against Currier in the United States District Court for the District of New Hampshire, alleging that Currier had (1) violated New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A; (2) defamed Reenstierna; and (3) tortiously interfered with Reenstierna's advantageous business relations. Specifically, he alleged that Currier knowingly and purposely submitted a false report to the Board and that each of the purported deficiencies cited against Reenstierna in Currier's report constituted material misrepresentations of fact. He further contended that Currier falsely certified in his report to the Board that he had "no personal interest with respect to the parties involved" or any "bias with respect . . . to the parties involved with the assignment."

         The district court granted Currier's motion for summary judgment, concluding that New Hampshire's absolute witness immunity doctrine precluded the use of Currier's report to establish liability on Reenstierna's claims.[4] Reenstierna timely appealed. We review a district court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the non-moving party -- here, Reenstierna. Audette v. Town of Plymouth, 858 F.3d 13, 20 (1st Cir. 2017). "Summary judgment is appropriate where 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Id. at 19 (quoting Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006)).

         II.

         To resolve this case, we must decide if the district court correctly applied New Hampshire's absolute witness immunity doctrine. If it applies to the statements in Currier's report, we must affirm. If it does not apply, we must vacate the judgment so that Reenstierna can use the statements in the report in a trial of his claims against Currier.

         A. New Hampshire's Law of Absolute Witness Immunity

         "The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be 'given every encouragement to make a full disclosure of all pertinent information within their knowledge.' . . . For a witness, this means he must be permitted to testify without fear of being sued if his testimony is disbelieved." Imbler v. Pachtman, 424 U.S. 409, 439 (1976) (White, J., concurring) (quoting 1 F. Harper & F. James, The Law of Torts § 5.22, p. 424 (1956)). In order to effectuate such full disclosure, the common law has traditionally acknowledged the importance of "provid[ing] absolute immunity from subsequent damages liability for all persons -- governmental or otherwise -- who were integral parts of the judicial process." Briscoe v. LaHue, 460 U.S. 325, 335 (1983).

         Consistent with these concerns, New Hampshire has long recognized that "statements made in the course of judicial proceedings are absolutely privileged from liability in civil actions." Pickering v. Frink, 461 A.2d 117, 119 (N.H. 1983) (citing McGranahan v. Dahar, 408 A.2d 121, 124 (N.H. 1979)). This absolute privilege "is tantamount to an immunity. It is not conditioned on the actor's good faith." McGranahan, 408 A.2d at 124.

         Invoking Briscoe, the New Hampshire Supreme Court most recently addressed the extent of witness immunity, and whether it should reach beyond the walls of a courtroom, in Provencher v. Buzzell-Plourde Assocs., 711 A.2d 251, 255 (N.H. 1998). Plaintiff Arthur Provencher had initially agreed to sell his property to the state for a highway project. Id. at 253. If the parties could not negotiate a satisfactory price, however, the state was entitled to take Provencher's property by eminent domain. Id. New Hampshire thus hired two real estate appraisal firms, both of which valued Provencher's land at $1 million. Provencher claimed that his land was in fact worth $7 million and refused to sell his property. Id. The state's appraisers testified at a subsequent condemnation hearing, where a jury ultimately valued Provencher's property at $4 million.

         Provencher sued the government's appraisers, alleging that they had breached various duties owed to him as an intended third-party beneficiary of their contract with the state. Id. The defendants argued that their appraisal, any statements made in preparation for the hearing, and their testimony at the hearing were protected by absolute witness immunity. Id. Provencher contended that even if the appraisers' testimony at the disciplinary hearing was protected by witness immunity, their pre-hearing statements and reports were beyond the doctrine's safe harbor. Id.

         In deciding to extend witness immunity beyond testimony at the judicial proceeding, the New Hampshire Supreme Court heeded the counsel of the Supreme Court of Washington, "recogniz[ing] that 'an expert's courtroom testimony is the last act in a long, complex process of evaluation and consultation with the litigant.'" Id. at 255 (quoting Bruce v. Byrne-Stevens & Assocs. Eng'rs, 776 P.2d 666, 672 (Wash. 1989)). Noting that "it is difficult to distinguish an expert witness's testimony from the acts and communications upon which it is based, " id., the court again quoted Bruce:

The privilege or immunity is not limited to what a person may say under oath while on the witness stand. It extends to statements or communications in connection with a judicial proceeding. . . . If this were not so, every expert who acts as a consultant for a client with reference to proposed or actual litigation, and thereafter appears as an expert witness, would be liable to suit at the hands of his client's adversary on the theory that while the expert's testimony was privileged, his preliminary conferences with and reports to his client were not, and could form the basis of a suit for tortious interference.

Id. (quoting Bruce, 776 P.2d at 672-73).

         The court next looked to the Restatement, which provides that "[a] witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding." Id. at 255-56 (quoting Restatement (Second) of Torts, § 588 (1977)). Importantly, the court cited comment e of section 588, which cabins the extent of the privilege by cautioning that a witness's pre-hearing statement should only be afforded immunity if the statement "has some relation to a proceeding that is actually contemplated in good faith and under seriousconsideration by the witness or a possible party to the proceeding." Id. at 256 (quoting Restatement (Second) of Torts § 588 cmt. e (1977)) (emphasis added in Provencher). Comment e further cautions that "[t]he bare possibility that the proceeding might be instituted is not to be used as a ...


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