2010-535 Appeal of Harold French (New Hampshire Board of Auctioneers)

Douglas, Leonard & Garvey, P.C.

(New Hampshire Board of Auctioneers)

No. 2010-535

Noonan. Bennett and Noonan had entered into a contract regarding the under his own name. The items for sale included a painting owned by William another auctioneer, Stephen Bennett, in Portsmouth and registered as a bidder auctions since 1976. On December 10, 2009, he attended an auction run by French is a licensed auctioneer in New Hampshire and has conducted

Board of Auctioneers

affirm. reprimand and probation for submitting a fictitious bid at an auction. We New Hampshire Board of Auctioneers (board) sanctioning him with a letter of DUGGAN, J. The petitioner, Harold French, appeals a decision of the

Michael A. Delaney

Board of Auctioneers. THE SUPREME COURT OF NEW HAMPSHIRE assistant attorney general, on the brief and orally), for the New Hampshire

the brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as that the decision is clearly unreasonable or unlawful. RSA 541:13 (2007); see p. 2 A party appealing a decision of the board has the burden of proof to show

board denied. This appeal followed. probation for one year. French filed a motion for reconsideration, which the reprimand, the board’s lowest form of discipline, and placed French on was fictitious.” Based upon these violations, the board issued a letter of with knowledge of the reserve, submitted a bid on the painting which he knew turn, RSA 311-B:11, II(c), when he, as detailed in the [b]oard’s findings of fact, and otherwise engaged in collusive bidding in violation of RSA 358-G:2 and, in concluded that French “willingly submitted a fictitious bid during an auction Bennett and French with misconduct. Following a hearing, the board met. Noonan later filed a complaint with the board, which charged both Bennett told Noonan that the painting did not sell because the reserve was not

Noonan subsequently requested payment from Bennett. However,

the profession.” The board found that French violated this provision because, conduct, or dishonorable conduct unworthy of, and affecting the practice of, the authority to discipline a licensed auctioneer for “[a]ny unprofessional Pursuant to RSA 311-B:11, II(c) (2005) (amended 2010), the board has

Id. preponderance of the evidence that such decision is unjust or unreasonable. gesturing to Bennett following French’s bid. aside or vacate a decision of the board unless we are satisfied by a clear painting had been sold because he thought that he had waived the reserve by prima facie lawful and reasonable.” RSA 541:13. Accordingly, we will not set attached French’s tag number to the painting. Noonan believed that his the board “upon all questions of fact properly before it shall be deemed to be painting. Bennett indicated to the gallery that the painting was sold and a decision of the board “shall be in accordance with RSA 541”). All findings of and ensure that the painting was sold. There were no further bids on the intend to actually purchase the painting, but sought only to protect the reserve also RSA 311-B:11-a, II (2005) (amended 2010) (directing that all appeals from $9,000, he bid $9,500. He later testified before the board that he did not French agreed to do so. When the bidding price for the painting reached painting if the reserve price was not met during the normal course of bidding. began. Bennett told French about the reserve and asked him to bid on the Bennett and French discussed Noonan’s painting just before the auction

remove the reserve and Noonan indicated that he did not wish to do so. Immediately prior to the auction, Bennett asked Noonan if he would like to

reserve and Bennett’s website advertised the auction as without reserve. promotional materials for the auction did not state that the painting had a auctioning of the painting and set a reserve price of $10,000. However, he knew was fictitious.” French also asserts that none of the auction p. 3 French “with knowledge of the reserve, submitted a bid on the painting which any goods.’” Contrary to French’s argument, the board specifically found that supporting a finding that [his] purpose in bidding was ‘bidding up the price of bidding. He argues that the board failed to “identify any facts or evidence board to rely upon RSA 358-G:2, his conduct did not constitute collusive

Nonetheless, French contends that even if it was permissible for the

collusive bidding. Accordingly, the board did not exceed its authority by disciplining French for “unprofessional” or “dishonorable” conduct pursuant to RSA 311-B:11, II(c). New Hampshire statute prohibits collusive bidding, it is also a form of purchasing the painting. The board then correctly determined that because a fictitious bid in violation of RSA 358-G:2 because he had no intention of RSA 358-G:1, II. The board concluded that French willingly submitted a

by-bidders. bidding shall include any use of false bidders, cappers, shills, or purpose of stimulating competitive bidding to purchase. Collusive encouraging or enticing bona fide bidders to purchase, or for the with bona fide bidders to purchase, or for the purpose of for the purpose of bidding up the price of any goods in competition engage in, or knowingly allows, fictitious bidding during an auction

behalf of the auctioneer or seller, causes, employs any person to

a practice whereby the auctioneer, the seller, or anyone acting on

as: RSA 358-G:2 prohibits the practice of collusive bidding, which is defined

the board to decide how to interpret and apply this provision. See legislature did not further define these terms. Instead, the legislature left it to licensed auctioneer for “unprofessional” or “dishonorable” conduct, the While the legislature provided the board with authority to discipline a the overall statutory scheme.”). construe statutes in isolation; instead, we attempt to do so in harmony with B:11, II. See Nilsson v. Bierman, 150 N.H. 393, 395 (2003) (“We do not pertains to the regulation of auctions, for guidance in interpreting RSA 311looked to another chapter, RSA chapter 358-G (2009), which specifically actions by the board shall be implemented). In this case, the board properly (providing the board with rulemaking authority to determine how disciplinary

violation of RSA 358-G:2, the board exceeded its authority. We disagree. does not specifically authorize the board to discipline an auctioneer for a (2009). French contends that because RSA 311-B:11 (2005) (amended 2010) among other things, he engaged in collusive bidding, contrary to RSA 358-G:2 p. 4 French also suggests that the board improperly relied upon Stormy

sanctioned French for his own role in deceiving other auction participants. and enticing a bona-fide bidder to place a bid.” Thus, the board correctly bidding during the auction for the purpose of stimulating competitive bidding it again emphasized that it sanctioned French because he engaged in “fictitious to explain why it did not find his testimony to be credible. Later in that order, French now relies upon, in its order on the motion for reconsideration simply to actually purchase the painting. The board made the five findings, which by factual findings that the respondent submitted a bid despite never intending painting which he knew was fictitious.” The board’s conclusion was supported auction” because “with knowledge of the reserve, [he] submitted a bid on the concluded that the respondent “willingly submitted a fictitious bid during the solely upon these findings. Rather, in its initial decision and order, the board misconduct only on the part of Bennett, the board did not sanction him based

price. bid once solely to prevent the property from being sold at an unreasonably low argument that bidding once on behalf of the owner is permissible because he Even if we were to agree with French that these findings established 523-24. French contends that Stormy Weathers actually supports his on the sale constituted collusive bidding. Stormy Weathers, 834 F. Supp. at use of unidentified agents to bid on its property in order to maximize its return decision in Towle v. Leavitt, 23 N.H. 360 (1851), and determined that a bank’s United States District Court for the District of New Hampshire looked to our Weathers, Inc. v. F.D.I.C., 834 F. Supp. 519 (D. N.H. 1993), in which the

deliberately conceal that the painting had not actually been sold. release French from purchasing the painting; and (5) Bennett sought to to the auction; (4) the bid was fictitious because Bennett had the authority to auction; (3) French and Bennett did not agree upon making a single bid prior web site; (2) French was not identified as bidding for the house prior to the because: (1) the auction was advertised as a no reserve auction on Bennett’s sought only to protect the interests of the painting’s owner to be credible among other things, that the board did not find French’s testimony that he French’s motion for reconsideration. These “findings of fact” established, characterizes as five “findings of fact” made by the board in its denial of upon Bennett’s conduct. In support of this argument, he directs us to what he French also argues that the board improperly sanctioned him based

the reserve, which is exactly the conduct prohibited by the statute. Indeed, the purpose of French’s bid was to entice another bidder to bid above that another auction participant actually bid based upon a fictitious bid. entice anyone to bid. However, nowhere in the statute is there a requirement met, and, accordingly, his bid below the reserve price did not actually cause or participants could have actually purchased the painting until the reserve was p. 5 Affirmed

unpersuaded by French’s argument. buyer to whom the statutory remedy could apply. Accordingly, we are without notice to other bidders at the auction. Moreover, here there was no bid on Noonan’s behalf, and did so without Noonan’s knowledge or consent and property or procure such a bid. Rather, Bennett, the auctioneer, procured a section is inapplicable here as the seller, Noonan, did not bid on his own seller’s behalf. Even if we were to agree with French’s interpretation, this French reads this provision as permitting an auction participant to bid on the

faith bid prior to the completion of the sale. option avoid the sale or take the goods at the price of the last good given that liberty for such bidding is reserved, the buyer may at his

DALIANIS, C.J.