New England Backflow, Inc. & a. v. Daniel Gagne & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2018-0537

NEW ENGLAND BACKFLOW, INC. & a.

v.

DANIEL GAGNE & a.

Argued: September 12, 2019
Opinion Issued: November 13, 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

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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.

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 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

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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. Analysis
A. Declaratory Judgment
1. Scope of RSA 485:11 and RSA 153:36, IV

We begin with the dismissal of the plaintiffs’ declaratory judgment
requests relating to their right to conduct backflow prevention work without a
plumbing license under RSA 485:11 and RSA 153:36. RSA 153:36, IV provides
an exception to the plumbing licensure requirement for certified operators
“when performing plumbing tasks within their certifications, as defined in RSA
485:11 and RSA 332-E:3.” RSA 153:36, IV, however, expressly limits this
exception to “the testing, maintenance, repair or replacement, and installation
of the water meter, meter horn, and backflow prevention devices directly
adjacent to and required as part of the protection of the drinking water
distribution system.”

RSA 485:11 provides, in relevant part:

There shall be a backflow prevention device installed at every
connection to a public water system if the facility connected may
pose a hazard to the quality of water supplied by the public water
system as determined by [DES]. Where applicable, the facility
receiving water from a public water supply shall be responsible for
having such . . . backflow prevention devices inspected and tested
by individuals certified by a third party who has been approved by
[DES] to conduct backflow device inspection and testing
certification. The facility shall also have backflow devices installed,
maintained, repaired, and replaced by individuals qualified by
either a plumbers license or by certification by [DES] . . . .

RSA 485:11 also limits qualified individuals to “the inspection and testing,
maintenance, repair or replacement, and installation of the water meters,

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meter horns, backflow preventers, and assembly devices directly adjacent to
and required as part of the protection for the drinking water distribution
system.”

The plaintiffs’ complaint sought the following declarations based upon
these statutory provisions: (1) RSA 485:11 and RSA 153:36 authorize the
plaintiffs to perform “backflow related work” that “necessarily includes
ancillary, collateral or coincidental work on pipes necessary to complete the
backflow work and restore the system to working order and code compliance,”
without a plumbing license; (2) backflow preventer work conducted by certified
operators falls within the scope of RSA 485:11 “irrespective of the location of
the backflow preventer”; and (3) the work performed by NEB’s employee at the
Hillsborough retail store fell within the scope of RSA 485:11 and was exempt
from plumbing licensure requirements under RSA 153:36.

When dismissing these requests, the trial court concluded that: (1) there
was no statutory language to support the “broad, and potentially limitless,”
unlicensed plumbing work set forth in the plaintiffs’ first requested declaration;
(2) the legislature intended to limit the backflow prevention work performed by
certified operators to backflow preventers that are “‘directly adjacent” to the
public water system; and (3) the employee’s work did not fall within the scope
of the statutes because the complaint contains no allegation that the backflow
preventer removed by the employee was directly adjacent to the public water
system, and RSA 485:11 allows certified operators to repair and replace, but
not to solely remove, backflow preventers.

The plaintiffs now contend that the trial court erred in interpreting the
statutes using the ordinary definitions of the statutes’ terms. They assert that
the “statutory framework that governs the protection of public drinking water
contains numerous contradictions and ambiguities,” and therefore requires
evidence about backflow prevention to clarify the meaning of the statutes’
terms. We disagree.

The exception to plumbing licensure requirements set forth in RSA
153:36, IV applies only when a certified operator performs “plumbing tasks . . .
as defined in RSA 485:11 and RSA 332-E:3.” Of these two statutes, only RSA
485:11 discusses tasks relating to backflow preventers. Therefore, we turn our
attention there. In doing so, we find no ambiguity that would require us to
look beyond the plain and ordinary meaning of the statute’s terms to resolve
the issue before us.

The first sentence of RSA 485:11 states: “There shall be a backflow
prevention device installed at every connection to a public water system if the
facility connected may pose a hazard to the quality of water supplied by the
public water system as determined by [DES].” Thus, the scope of the statute is
limited to backflow preventers required by the statute to be installed at the

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connection to the public water system. RSA 485:11 also requires the facility to
have these backflow preventers inspected and tested “by a third party who has
been approved by [DES],” and installed, maintained, repaired, and replaced by
qualified individuals — a licensed plumber or a certified operator. Therefore, at
most, RSA 485:11 authorizes certified operators to inspect, test, install,
maintain, repair, and replace backflow preventers required by the statute to be
installed at a facility’s connection to a public water system.

Nothing in the statute expressly or implicitly authorizes certified
operators to work on backflow preventers that do not fall within this category
or to engage in tasks that fall outside of the scope of those listed in the statute.
In fact, like RSA 153:36, IV, RSA 485:11 expressly limits the activities of
certified operators to the “inspection and testing, maintenance, repair or
replacement, and installation of the water meters, meter horns, backflow
preventers, and assembly devices directly adjacent to and required as part of
the protection for the drinking water distribution system.” Thus, the statute
plainly limits the type of tasks certified operators may perform and the devices
upon which they may perform those tasks.

The plaintiffs, however, maintain that this interpretation is contrary to
the purpose of RSA chapter 485 (2013 & Supp. 2018) to protect the public
water system from contaminants. See RSA 485:1, I (Supp. 2018) (“The purpose
of this chapter is to provide a comprehensive drinking water protection
program for the citizens of New Hampshire.”). They argue that, because of the
“cross connection” within a facility’s water system, the public water system
could be at risk of contamination if certified operators are not permitted to
work on all backflow preventers within facilities, even those that are not located
at the connection to the public water system. The plaintiffs therefore assert
that we must construe the statute as permitting the plaintiffs to work on all
backflow preventers to effectuate the statute’s purpose. Again, we disagree.

Not only would the plaintiffs’ interpretation require us to ignore the
express language of the statutes, but it would also mandate that we substitute
our judgment for that of the legislature. See Smith Insurance, Inc. v.
Grievance Committee, 120 N.H. 856, 863 (1980) (explaining that we may not
“substitute our judgment for that of the legislature”). RSA 485:11 seeks to
protect the public water system by requiring that potentially hazardous
facilities have backflow preventers installed, inspected, tested, maintained,
repaired, and replaced at each connection to the public water system. If the
legislature believed that this requirement was insufficient to protect the public
water system from contaminants within hazardous facilities, the legislature
could have set forth additional requirements — such as requiring the
installation and maintenance of backflow preventers at other locations within a
facility. The legislature did not do so, and we will not read requirements into
the statute that the legislature did not see fit to include.

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 Nevertheless, the plaintiffs argue that our interpretation of RSA 485:11
creates an absurd result, based upon the language in RSA 485:11 that limits
the activities of “qualified individuals” — licensed plumbers and certified
operators — to “the inspection and testing, maintenance, repair or
replacement, and installation of . . . backflow preventers . . . directly
adjacent to . . . the drinking water distribution system.” Because this
limitation applies to both licensed plumbers and certified operators, the
plaintiffs contend that our interpretation of the statute allows “no person to
perform work on backflow preventers inside [of a] building.” We disagree.

As an initial matter, we reach no conclusion as to whether RSA 485:11
prohibits qualified individuals from performing work on backflow preventers
inside of a facility. The statute is silent as to the physical location — whether
inside or outside of a facility — of the connections to the public water system
that may require a backflow preventer. We merely conclude that RSA 485:11
limits the work of qualified individuals to, at most, the installation, inspection,
testing, maintenance, repair, and replacement of backflow preventers required
to be installed at the connection to the public water system.

To the extent that the plaintiffs argue that our interpretation prevents
any individual, whether a licensed plumber or a certified operator, from
performing work on all other backflow preventers that may exist within a
facility, this argument ignores the statutory authority of licensed plumbers to
conduct a broad range of tasks on public and private water systems. See RSA
153:27, XIV (2014) (defining “plumbing” as “the practice . . . used in the
installing, maintenance, extension, and alteration of all piping, fixtures,
plumbing appliances, and plumbing appurtenances within or adjacent to any
structure, in connection with . . . public or private water systems” (emphasis
added)). Therefore, the plain language of the statute does not prohibit licensed
plumbers from working on backflow preventers that fall outside of the scope of
RSA 485:11.

In light of this determination, we conclude that the plaintiffs’ requested
declarations relating to the scope of RSA 485:11 and RSA 153:36 are
inconsistent with the statutes. As to the plaintiffs’ first request — seeking a
declaration that RSA 485:11 and RSA 153:36 authorize the plaintiffs to
conduct “ancillary, collateral or coincidental work on pipes necessary to
complete the backflow prevention work and restore the system to working order
and code compliance” — RSA 485:11 and RSA 153:36, IV expressly limit the
work certified operators are authorized to perform without a plumbing license
to the activities specifically enumerated in the statutes. The statutes do not
confer the authority upon certified operators to work on pipes generally, nor
does it confer the broad, and vague, authority upon certified operators to
“restore the system to working order and code compliance.” The plaintiffs’
requested declaration would provide potentially limitless authority to engage in

8
plumbing activities without the requisite license, which conflicts with the
language of the statutes.

As to the next requested declaration — that “backflow preventer work
falls within the scope of RSA 485:11 irrespective” of the device’s location — the
language of RSA 485:11 and RSA 153:36, IV provides that certified operators
may not work on backflow preventers irrespective of their location. Finally, the
plaintiffs’ requested declaration relating to the scope of the employee’s work
fails for the same reason. The plaintiffs’ complaint alleges only that the
backflow preventer removed by their employee from the retail store was in a
location “leading from the building’s water system outside to a landscaping
sprinkler.” (Emphasis added.) Thus, the complaint fails to allege that the
backflow preventer was located at a connection to the public water system. See
RSA 485:11; RSA 153:36, IV. Accordingly, we conclude that the trial court did
not err in dismissing these requested declarations.

2. Cease and Desist Order

We next address the trial court’s dismissal of the plaintiffs’ requested
declaration pertaining to the validity of the cease and desist order. The trial
court concluded that this request was moot because the cease and desist order
pertained only to NEB’s work in Pittsburg, which was completed. On appeal,
the plaintiffs do not dispute that their Pittsburg work was the subject of the
cease and desist order, nor do they dispute that the work has been completed.
Instead, they argue that, if OFM did not have authority to issue the order, the
plaintiffs’ “claims for damages . . . remain ripe” because they incurred damages
as a result of the cease and desist order and are entitled to enhanced
compensatory damages and attorney’s fees and costs based upon OFM’s
“oppressive conduct.”

To bring a declaratory judgment claim under RSA 491:22 (Supp. 2018), a
party must show that some right of the party has been impaired or prejudiced
by the application of a rule or statute. Duncan v. State, 166 N.H. 630, 645
(2014). To meet this requirement, the claims raised must be definite and
concrete and touch the legal relations of parties having adverse interests. Id.
A petition for declaratory judgment becomes moot when any event occurs after
the petition is filed which terminates the adverse claim. Real Estate Planners
v. Town of Newmarket, 134 N.H. 696, 701 (1991).

Because the plaintiffs’ Pittsburg work was the subject of the cease and
desist order, their completion of that work terminated any adverse claim they
may have had against the defendants regarding the validity of the order at the
time it was issued. Although the plaintiffs claim that they suffered damages as
a result of the defendants’ conduct, RSA 491:22 provides limited authority to
the superior court when evaluating a declaratory judgment claim: it authorizes
the superior court only to “determine the question as between the parties . . . .”

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It does not authorize the trial court to award damages, and it expressly
prohibits an award of attorney’s fees and costs in declaratory judgment actions
“that are not for the purpose of determining insurance coverage.” RSA 491:22,
I. Therefore, the plaintiffs’ requests for damages and attorney’s fees fail to
provide a basis that would permit the adjudication of their declaratory request.
Accordingly, the trial court did not err in dismissing this request.

B. Unconstitutional Taking

We now address the plaintiffs’ unconstitutional taking claim. The
plaintiffs’ complaint asserts that they have a vested property right in the
backflow prevention work they have been performing since Whittemore
obtained his operator certification, and that the efforts of the defendants to
prohibit the plaintiffs from performing these “traditional business activities”
amounts to an “unconstitutional taking of property, subject to damages . . . .”
In their objection to the defendants’ motion to dismiss, the plaintiffs clarified
this claim, contending that the restrictions imposed by statutory amendments
to RSA 485:11 and RSA 153:36, IV, passed by the legislature in 2014,
constitute an “erosion” of their right to conduct backflow prevention work
without limitation under RSA chapter 332-E.

The trial court rejected this argument, concluding that the previous
versions of the statutes have always limited certified operators’ work to public
water systems. The trial court further concluded that recent amendments to
the statutes expanded — rather than eroded — the activities authorized by the
statutes. The plaintiffs now challenge these conclusions. We construe the
plaintiffs’ argument on appeal as follows: that the defendants’ actions under
recent statutory amendments deprived the plaintiffs of a vested property right
to conduct the unlimited backflow prevention work previously permitted under
prior versions of the statutes, thereby entitling the plaintiffs to compensation.1

Part I, Article 12 of our constitution provides that “no part of a man’s
property shall be taken from him, or applied to public uses, without his own
consent, or that of the representative body of the people.” We have previously

1 The defendants first argue that the plaintiffs failed to preserve their unconstitutional taking
argument because they rely, in part, upon a prior version of RSA 153:36, IV, set forth in a now-
repealed statute, see RSA 329-A:13 (2004) (repealed 2013), which the plaintiffs did not
expressly cite in their arguments to the trial court. However, the plaintiffs argued to the trial
court that, prior to the 2014 statutory amendments, the statutes “placed no limitation on
which backflow preventers [Whittemore] and his firm could work on,” and quoted a prior
version of RSA 153:36, IV that is almost identical to the language in the repealed RSA 329-
A:13. Because we conduct statutory interpretation de novo, see Clark, 171 N.H. at 650, and
because the plaintiffs’ argument to the trial court provided it with the opportunity to draw
conclusions about the plaintiffs’ rights under prior versions of the statutes, we conclude that
the plaintiffs’ argument is sufficiently preserved for our review. See SNCR Corp. v. Greene, 152
N.H. 223, 224 (2005) (explaining that the trial court should have “a full opportunity to come to
sound conclusions and to correct claimed errors in the first instance” (quotation omitted)).

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applied this provision to the regulation of land, holding that a regulation
“effects an unconstitutional taking” where “its application to a particular parcel
denies the owner an economically viable use of his or her land.” Quirk v. Town
of New Boston, 140 N.H. 124, 130 (1995) (quotation omitted). A plurality of the
United States Supreme Court has also recognized that “economic regulation
. . . may nonetheless effect a taking” under the Fifth Amendment to the United
States Constitution, even though “takings problems are more commonly
presented when the interference with property can be characterized as a
physical invasion by government.” Eastern Enterprises v. Apfel, 524 U.S. 498,
522-23 (1998) (plurality opinion) (quotation omitted). But see id. at 541-42
(Kennedy, J., concurring in the judgment and dissenting in part) (identifying
prior cases in which the Takings Clause was applied only to “specific and
identified properties or property rights”).

The plaintiffs fail to cite any authority that would support an
unconstitutional taking claim based upon the State’s enforcement of a law
restricting activities previously authorized by a professional certification.
Nonetheless, assuming without deciding that such a claim is viable, we agree
with the trial court that the plaintiffs have failed to state an unconstitutional
taking claim because they cannot demonstrate that the prior versions of the
statutes authorized certified operators to engage in unlimited backflow
prevention work.

When Whittemore obtained his certification from DES in 1992, RSA
chapter 332-E defined “[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.” RSA 332-E:1, IV
(1984). The statute further defined “[w]ater distribution system” as the
“portion of the public water system which includes sources, pipes, storage
facilities, pressure booster facilities, and all measuring and control devices
used to convey potable water to the system users.” RSA 332-E:1, V (1984)
(emphasis added). The statute defined “[w]ater treatment plant” as “the portion
of the public water supply system which in some way alters the physical,
chemical, or bacteriological quality of the water being treated.” RSA 332-E:1,
VI (1984) (emphasis added). Finally, the statute defined “[c]ertificate” as “a
certificate of competency issued by the division of water supply and pollution
control stating that the operator has met particular requirements set by the
division of water supply and pollution control for certification at [the operator’s]
level of operation.” RSA 332-E:1, II (Supp. 1992) (amended 1996).

These definitions demonstrate that a DES certification was intended to
authorize an operator to operate a water treatment plant or distribution system
of a public water system. Nothing in this prior version of RSA chapter 332-E
(1984 & Supp. 1992) authorized a certified operator to work on private water
systems. Given that the statutory authority of certified operators has not

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changed in substance since Whittemore received his certification, compare RSA
ch. 332-E (1984 & Supp. 1992) with RSA ch. 332-E (2017), we conclude the
plaintiffs’ DES certification alone did not provide the plaintiffs with a right to
conduct unlimited backflow prevention work without a plumbing license, as
they contend.

Nevertheless, the plaintiffs argue that the prior versions of RSA 485:11
provided such a right. We disagree. In 1992, RSA 485:11 read as follows:

Every valve, gate or other device for controlling or preventing the
inflow of water of such unapproved character to the public supply
pipe system must be constructed to permit efficient inspection and
testing, and an actual test of such device shall be made not less
than twice annually by the individual, corporation or association
furnishing water to the public. If the water supply management
shall find that a gate or valve is not working properly, and cannot
be readily adjusted, it shall at once notify the division, and, under
the advice and direction of said division, shall repair or correct the
faulty condition.

RSA 485:11 (1992) (amended 1996, 2013, 2014, 2015). Other than a one-word
amendment in 1996, see Laws 1996, 228:106, this version of the statute
remained in effect until 2013. See RSA 485:11 (2013) (amended 2013, 2014,
2015).

Similar to RSA chapter 332-E, nothing in this version of the statute
authorized the plaintiffs, as certified operators, to conduct unlimited backflow
prevention work without a plumbing license. To the contrary, like the current
version of RSA 485:11, this prior version concerns the public water system by
referencing devices “for controlling or preventing the inflow of water . . . to the
public supply pipe system.” RSA 485:11 (1992). Furthermore, by requiring
that the “water supply management” notify DES, which had authority over the
public water supply, the statute demonstrates that RSA 485:11 applied only to
backflow into the public water system, not to backflow occurring within a
certain facility’s private water system. Id.

In 2013, the legislature repealed and reenacted RSA 485:11, see Laws
2013, 50:1, replacing it with the operative language that, in large part, appears
in the current statute:

There shall be a backflow prevention device installed at every
connection to a public water system if the facility connected may
pose a hazard to the quality of water supplied by the public water
system as determined by the [DES]. The facility receiving water
from a public water supply shall be responsible for having such

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 backflow prevention devices installed, serviced, and tested by
individuals qualified by license or certification to perform these
activities. Testing of backflow devices shall occur twice annually
unless the public water supplier determines the facility poses a low
hazard, in which case testing shall be performed on an annual
basis. The facility receiving water from a public water supplier is
responsible for ensuring that the backflow prevention device is
working properly to prevent backflow into the public water system.

RSA 485:11 (Supp. 2013); see RSA 485:11 (Supp. 2018). As discussed above,
this language limits the scope of the statute to backflow preventers installed at
a facility’s connection to the public water system, again demonstrating the
statute’s concern for backflow entering the public water system. Similar to its
current version, the 2013 version provides no express or implied authority to
certified operators to engage in backflow prevention work on other backflow
preventers. Accordingly, we conclude that the plaintiffs’ DES certification did
not give them a vested property right under the prior versions of RSA 485:11 to
perform backflow prevention work beyond a facility’s connection to the public
water system.

Finally, the plaintiffs argue that the prior version of RSA 153:36, IV
created this vested property right. In 2003, the legislature enacted RSA 329-
A:13, VII (2004) (repealed 2013), which excepted from plumbing licensure
requirements “employees of public drinking water systems and public water
system operators certified by [DES] for drinking water treatment.” Laws 2003,
272:11. In 2013, this statute was repealed and reenacted as RSA 153:36, IV
(2013) (amended 2014), providing an identical exception to that in RSA 329-
A:13, VII. See Laws 2013, 275:8. RSA 153:36, IV was not amended to its
current version, with language expressly limiting the scope of the exception,
until 2014. See Laws 2014, 106:1. While the language in these prior versions
of RSA 153:36, IV provides no express limitation to the plumbing licensure
exception for certified operators, it applied only to employees of public drinking
water systems and public water system operators certified by DES for drinking
water treatment. Thus, these versions of the statute could have only applied to
certified operators when working within the scope of their certification.

Given that the plaintiffs, by virtue of their operator certification, were
responsible for working on public water systems at the time that RSA 329-
A:13, VII was enacted, and that RSA 329-A:13, VII expressly limited the
plumbing licensure exception to certified water system operators for drinking
water treatment, we conclude that this exception did not give the plaintiffs the
right to perform unlimited backflow prevention work on backflow preventers
that were not part of the public water system. Accordingly, the plaintiffs’
complaint fails to state a claim for an unconstitutional taking.

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 C. Malicious Prosecution and Abuse of Process

We now address the plaintiffs’ final challenge to the trial court’s
dismissal of their malicious prosecution and abuse of process claims for failure
to state a claim upon which relief may be granted. The trial court dismissed
both claims because the subject of the prosecution and its process was the
plaintiffs’ employee, rather than the plaintiffs. As to the abuse of process
claim, the trial court also concluded, in relevant part, that the plaintiffs failed
to allege facts demonstrating that the defendants abused process after it was
issued. See Business Publications v. Stephen, 140 N.H. 145, 148 (1995).

The plaintiffs argue that they have a right to bring these claims because
they were the intended target of the malicious prosecution and abuse of
process and have suffered a concrete injury as a result. To the extent that we
conclude that they do not fall within the class of plaintiffs entitled to bring
either claim, they urge us to expand these common law causes of action based
upon the facts of this case and public policy considerations.

We need not reach these arguments, however, because we conclude that
their claims fail on other grounds. See Douglas v. Douglas, 143 N.H. 419, 427
(1999). To prove a claim for malicious prosecution, the plaintiffs must
demonstrate that: (1) the plaintiffs were subjected to a criminal prosecution or
civil proceeding instituted by the defendant, (2) without probable cause, (3)
with malice, and (4) the prior action terminated in the plaintiffs’ favor. Farrelly
v. City of Concord, 168 N.H. 430, 445 (2015). In the context of a malicious
prosecution claim, probable cause is defined as “such a state of facts in the
mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe or entertain an honest and strong suspicion that the
person arrested is guilty.” Paul v. Sherburne, 153 N.H. 747, 749 (2006)
(quotation and brackets omitted). The existence of probable cause is a
question for the trier of fact to the extent that it depends on the credibility of
conflicting evidence proffered on that issue. Id. at 750. Whether there was
probable cause is ultimately, however, a question of law to be determined by
the court. Id. Assuming the factual allegations in the plaintiffs’ complaint to
be true, see Cluff-Landry, 169 N.H. at 671, we conclude that the complaint
fails to allege that the arrest of the employee lacked probable cause.

RSA 153:37, I, provides, “Any person or business entity who
performs . . . plumbing without first having obtained a license, shall be guilty
of a misdemeanor.” According to the plaintiffs’ complaint, the OFM prosecutor
“executed an affidavit in support of a warrant to arrest [the employee] for
plumbing without a license” for the act of cutting and capping the pipe at the
Hillsborough store. The plaintiffs’ complaint alleges that the employee did just
that — he removed a defective backflow preventer leading from the store’s
water system to a landscaping sprinkler and capped the open pipe. Given that
the statutes limit certified operators, who are not licensed plumbers, to

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performing specific work on backflow preventers required by statute to be
installed at the connection to the public water system, we conclude that the
plaintiffs’ complaint fails to allege that the employee engaged in activity
permitted by RSA 485:11 or RSA 153:36, IV. Therefore, we must also conclude
that the plaintiffs’ complaint fails to allege facts demonstrating that the
defendants lacked probable cause to arrest the employee for plumbing without
a license. See RSA 153:37, I.

We also conclude that the plaintiffs’ abuse of process claim fails. To
prove a claim of abuse of process, the plaintiffs must prove that: (1) a person
used (2) legal process, whether criminal or civil, (3) against the party, (4)
primarily to accomplish a purpose for which it is not designed, and (5) caused
harm to the party (6) by the abuse of process. Tessier v. Rockefeller, 162 N.H.
324, 335 (2011). Moreover, an action for abuse of process is concerned with
the improper use of process after it has been issued. Id. Thus, liability is not
imposed for the wrongful procurement of legal process or the wrongful
initiation of criminal or civil proceedings. Id. Rather, liability is imposed for
the subsequent misuse of process after it has been properly obtained. Id.

The trial court concluded that the abuse of process alleged in the
complaint concerned the initiation of criminal proceedings against the
employee through the procurement and execution of the arrest warrant, and,
therefore, that the complaint failed to allege abuse of process after it had been
issued. Even if we construe the plaintiffs’ complaint as alleging that the abuse
of process was the defendants’ use of the arrest warrant after it was issued by
a court, the complaint still fails to plead facts necessary to state an abuse of
process claim.

We have held that abuse of process comprises two essential elements: an
ulterior purpose and a willful act in the use of the process not proper in the
regular conduct of the proceeding. Clipper Affiliates v. Checovich, 138 N.H.
271, 276 (1994). “‘The improper purpose usually takes the form of coercion to
obtain a collateral advantage, not properly involved in the proceeding itself,
such as the surrender of property or the payment of money, by the use of the
process as a threat or a club.’” Id. at 276-77 (quoting W. P. Keeton, Prosser
and Keeton on the Law of Torts 898 (5th ed. 1984)). Thus, “[t]here is no
liability where a party has done nothing more than carry out the process to its
authorized conclusion, even though with ulterior intentions.” Id. at 277.

Here, the plaintiffs’ complaint fails to set forth any allegations that the
defendants, after procuring the arrest warrant, used it for something other
than its authorized purpose — to arrest the employee. Thus, even though the
plaintiffs’ complaint, viewed in the light most favorable to them, may
adequately allege that the defendants had ulterior intentions in procuring and
executing the warrant, the complaint fails to allege that the defendants used
the warrant for an improper purpose to gain “‘a collateral advantage, not

15
properly involved in the proceeding itself . . . .’” Id. at 276 (quoting Keeton,
supra). Accordingly, we affirm the trial court’s decision to dismiss the
plaintiffs’ abuse of process claim.

Affirmed.

HICKS, J., concurred; HANTZ MARCONI, J., concurred specially.

HANTZ MARCONI, J., concurring specially. I join the opinion of the
court in all respects. I write separately to note that, while I agree that RSA
485:11 can be interpreted no other way than as explained here, I question the
utility of preventing certified operators of water distribution systems — persons
having full responsibility for the safe operation of water treatment plants and
water distribution systems, see RSA 332-E:1, II, IV — from working on
backflow prevention devices subsidiary to the primary device installed at the
point of connection to the public water supply. Because the purpose and
technology for those devices are identical, it seems odd to allow certified
operators to perform work on the main backflow preventer but reserve to
licensed plumbers the ability to work on all other backflow preventers.
Furthermore, while I agree that regulated professions should not exceed the
authorizations conferred by license, it strikes me as extreme that a certified
operator would be arrested for removing, but not replacing, a backflow
preventer. The legislature may want to take another look at this regulatory
area.

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