Ruel v. New Hampshire Real Estate Appraiser Bd.

• Decision Date: 15 December 2011
• Docket Number: No. 2010–828.,2010–828.
• Citation: 163 N.H. 34,35 A.3d 636
• Parties: Christopher RUEL v. NEW HAMPSHIRE REAL ESTATE APPRAISER BOARD.
• Court: New Hampshire Supreme Court

163 N.H. 34

35 A.3d 636

Christopher RUEL

v.NEW HAMPSHIRE REAL ESTATE APPRAISER BOARD.

No. 2010–828.

Supreme Court of New Hampshire.

Argued: Sept. 22, 2011.Opinion Issued: Dec. 15, 2011.

Bianco Professional Association, of Concord (Thomas P. Colantuono on the brief and orally), for Christopher Ruel.

Michael A. Delaney, attorney general (Lynmarie C. Cusack, assistant attorney general, and Kristen A. Fiore, attorney, on the memorandum of law, and Elyse S. Alkalay, attorney, orally), for the New Hampshire Real Estate Appraiser Board.

LYNN, J.

Christopher Ruel, a licensed real estate appraiser, appeals an order of the Superior Court ( McNamara, J.) remanding his case to the New Hampshire Real Estate Appraiser Board (Board) for a new disciplinary hearing. We affirm.

The pertinent facts, as established by the record, are as follows. In the spring of 2007, Kenneth Frederick hired Ruel to appraise his property in Kingston. The New Hampshire Department of Transportation (DOT) sought to take Frederick's property by eminent domain and Frederick used Ruel's appraisal in negotiating a settlement with DOT. DOT performed its own appraisal and valued the property at approximately fifty thousand dollars less than did Ruel. After finalizing the settlement, a DOT appraisal supervisor, George LeMay, reviewed Ruel's appraisal and filed a grievance against him with the Board on September 25, 2007.

On November 16, 2007, the Board voted to investigate the grievance and assigned the case to an investigator, Peggy Gallus. Later, it was assigned to Barry Shea for a second investigation. Ruel received notice of the allegations in an April 25, 2008 letter from the Board. Shea submitted his report to the Board on October 30, 2008, noting Ruel's “substantial” non-compliance with the professional rules. On December 2, 2008, Ruel failed to appear for a scheduled meeting with Gallus, the grievance officer in charge of his matter, but the two had several phone calls discussing possible sanctions. Later, pursuant to Board procedure, the Board sent Ruel a proposed settlement. In April 2009, the Board granted Ruel's request to extend the deadline to respond to the settlement offer.

After Ruel rejected the settlement offer, the Board voted to schedule a hearing for November 13, 2009. Ruel received notice of this hearing in a letter dated August 27, 2009. The Board continued the hearing until December 18, 2009, so that its investigator, Shea, would be present to testify. At the hearing, both Shea and Ruel testified; however, during Ruel's testimony, one Board member left the hearing and did not participate in deciding his case. Ruel submitted requests for findings of fact and rulings of law, which were ruled on at a public hearing on February 12, 2010. In April 2010, four members of the Board voted to order Ruel to pay a $500 fine and attend two appraisal courses.

Ruel sought certiorari review in the superior court, alleging several errors in the Board's procedures. The superior court rejected most of Ruel's arguments, but remanded the case to the Board for another hearing because the Board conducted a portion of the disciplinary hearing and issued its final order without a quorum of its membership participating. This appeal followed.

On appeal, Ruel argues that the superior court should have dismissed the Board proceedings against him because: (1) LeMay lacked standing to file the initial grievance and, therefore, the case should never have been heard; (2) the Board violated its governing statute by taking more than two years to dispose of his case; (3) the Board's delay materially prejudiced him; and (4) the Board's determination to continue with the hearing and render a final decision without a quorum violated his due process rights. In addition, Ruel contends that the superior court erred in not reviewing Shea's qualifications and competency to testify as a witness. Finally, he asks us to award attorney's fees.

I

Before considering Ruel's arguments, we first review generally the regulatory scheme for real estate appraisers established by RSA chapter 310–B. This is the first occasion we have had to address this statute. Enacted in 1991 to bring New Hampshire into compliance with Title XI of the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. §§ 3310, 3331 (Supp.2011), RSA chapter 310–B establishes a comprehensive system for the regulation of individuals who perform real estate appraisals in connection with “federally-related transactions”; ¹ i.e., any real estate transaction in which a federally regulated financial institution provides funding. See RSA 310–B:2, IX, X, XI (2005 & Supp.2011). The statute creates a real estate appraiser board of seven members ( RSA 310–B:4, I (Supp.2011)); provides for the licensure of appraisers ( RSA 310–B:5 (2005)) and establishes various classes of licenses and certifications ( RSA 310–B:6 (Supp.2011)); sets examination, education and experience prerequisites for the various classes of licenses and certifications ( RSA 310–B:7, :8, :9 (2005 & Supp.2011)); and establishes procedures for the Board to receive and consider grievances and complaints ( RSA 310–B:17–a, :17–b (2005)), to hold hearings ( RSA 310–B:19 (2005)), and to take disciplinary action against licensees ( RSA 310–B:18 (2005 & Supp.2011)).

To decide the issues raised in this appeal, we must first determine the interplay between grievances and complaints under the statutory scheme. RSA 310–B:17–a (2005) and RSA 310–B:17–b (2005) provide as follows:

310–B: 17–a Grievances.

I. All grievances shall be in writing and objectively received and reviewed by the board.

II. If the board determines that a grievance requires further investigation, it shall be acted upon within 90 days.

III. Disposition of all grievances shall be voted on by the board.

IV. The board, on its own motion and in accordance with the provisions of this chapter, shall commence a disciplinary proceeding.

310–B:17–b Complaints.

I. Complaints shall not be accepted for filing with the board unless the grievance procedures in RSA 310–B:17–a have been concluded. The aggrieved party may proceed with the complaint process if the aggrieved party does not agree with the decision of the board.

II. To be accepted for filing, complaints shall be filed on a form provided by the board.

III. Properly filed complaints shall be reviewed by the board to determine compliance with this section.

IV. Upon confirmation that a complaint complies with the provisions of this section, the board shall schedule a disciplinary proceeding on the complaint in accordance with the provisions of RSA 541–A.

In its April 2009 proposed settlement, the Board stated that, if Ruel did not accept its proposed settlement, the “grievance [would] be elevated to a complaint.” Despite this representation, the Board now argues that the matter involving Ruel remained a grievance throughout the proceedings before the Board. The Board contends that, after the settlement was rejected, it merely exercised its authority to convene a “grievance hearing” under RSA 310–B:17–a, IV and never elevated this matter to a complaint. We disagree.

Although there is no statutory definition of the terms “grievance” and “complaint,” the board's regulations supply such definitions. “ ‘Grievance’ means an allegation in writing and submitted to the board that an appraiser has committed misconduct.” N.H.Code Admin. R., Rab 202.06 (2007). “ ‘Complaint’ means a written and signed statement delivered or mailed to the offices of the board which complies with Rab 205.03.” N.H.Code Admin. R., Rab 202.02. Pursuant to RSA 310–B:17–b, I, and Rab 205.03(a), a grievant who does not agree with the Board's proposed disposition of his or her grievance may file a complaint, in which case the Board is then required to hold an adjudicative hearing to determine what discipline, if any, is appropriate. While both the statute and the regulation could be read to suggest that only a person who disagrees with the Board's resolution of his or her grievance can file a complaint, such a construction would lead to absurd results. If one accepts the Board's position that, in the absence of a complaint filed by a dissatisfied grievant, the initiation by the Board of a formal disciplinary hearing against a licensed appraiser does not convert a grievance into a complaint, the result would be that, even at the conclusion of a full adversary hearing conducted by the Board on its own initiative, a grievant dissatisfied with the outcome could file a “complaint” and thereby force the Board to hold another hearing to address the same issues again. We will not presume that the legislature intended such a wasteful and illogical result. See Appeal of Geekie, 157 N.H. 195, 202, 949 A.2d 686 (2008) (court “will not interpret statutory language in a literal manner when such a reading would lead to an absurd result” (quotation omitted)).

Rather, the more reasonable construction of the statute is that once the Board has abandoned its efforts to resolve a grievance informally through settlement and has determined to initiate a formal disciplinary hearing, such action has the effect of converting the grievance into a complaint. Both RSA 310–B:17–a, IV and Rab 205.02(b)(9) specifically contemplate that, in response to a grievance, the Board may commence an adversarial disciplinary proceeding on its own motion. RSA 310–B:19 states: “ The board shall take no disciplinary action without a hearing,” and further provides, “At least 14 days prior to hearing, all parties to a disciplinary hearing shall be served, either personally or by certified mail, return receipt requested, with a written copy of the complaint filed and notice of the time and place for hearing.” (Emphasis added.) See also N.H.Code Admin. R., Rab 208.02(b). When read in the context of the entire statutory scheme, it becomes clear that once the Board commences an adjudicative...