Thomann v. Bd. of Registration of Real Estate Brokers & Salesmen

• Decision Date: 10 December 2018
• Docket Number: SJC-12360
• Citation: 112 N.E.3d 770,481 Mass. 1006
• Parties: Michael THOMANN v. BOARD OF REGISTRATION OF REAL ESTATE BROKERS AND SALESMEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 1006

112 N.E.3d 770

Michael THOMANN

v.BOARD OF REGISTRATION OF REAL ESTATE BROKERS AND SALESMEN.¹

SJC-12360

Supreme Judicial Court of Massachusetts.

December 10, 2018

The case was submitted on briefs.

Michael Thomann, pro se.

Maura Healey, Attorney General, & Kimberly A. Parr, Assistant Attorney General, for Board of Registration of Real Estate Brokers and Salesmen.

RESCRIPT

Michael Thomann, a licensed real estate broker, appeals from the judgment of a single justice of this court affirming a decision of the Board of Registration of Real Estate Brokers and Salesmen (board) suspending Thomann's license for ten days. We affirm.

1. Proceedings before the board of registration. In October 2014, the board initiated adjudicatory proceedings against Thomann, alleging that he had engaged in the business of real estate brokering through an unlicensed limited liability company, in violation of 254 Code Mass. Regs. § 2.00(11) (2013) and 254 Code Mass. Regs. § 3.00(14)(e) (2005) ; and had failed to provide a certain notice of agency disclosure to the seller of real property, in violation of 254 Code Mass. Regs. § 3.00(13)(a) (2005).² The board asserted, on the basis of those violations, that discipline was warranted pursuant to G. L. c. 112, § 61. Thomann denied the allegations against him; asserted that he had conducted his real estate brokering activities through a properly registered business or trade name; and alleged that it was his routine business practice to provide his clients with a specific form of agency disclosure. Over Thomann's opposition, an administrative hearing officer eventually granted the board's motion for a summary decision, concluding that there were no genuine issues of material fact in dispute and that the alleged violations had been established. See 801 Code Mass. Regs. § 1.01(7)(h) (1998). The parties, through counsel, then submitted memoranda in lieu of a sanctions hearing.

The hearing officer's tentative decision, which referenced her summary ruling, determined that the violations had been proved and concluded that a sanction against the respondent's license was therefore warranted.³ See 801 Code Mass. Regs. § 1.01(11)(c) (1998). Thomann, both individually and through his attorney, filed written objections. The board's final decision, dated September 15, 2016, considered Thomann's objections and adopted the tentative decision with certain modifications. It ordered suspension of Thomann's license for ten days, beginning on October 3, 2016, with reinstatement conditioned on his written certification that he did not practice during the period of suspension; payment of a $1,200 civil administrative penalty; and submission of an application for an appropriate license for Thomann's limited liability company or a certification that the company had been dissolved. See G. L. c. 112, §§ 61, 65A. The board's decision notified Thomann that he could appeal from the decision either by filing a petition for judicial review in the Superior Court within twenty days of his receipt of the decision, pursuant to G. L. c. 112, § 87BBB, or by filing a petition for review in the county court within thirty days, pursuant to G. L. c. 112, § 64.

On October 19, 2016, Thomann filed a motion in the county court seeking an extension of time to file a petition there, and representing that he received the board's final order on September 30, 2016. The clerk of the county court treated this motion as a petition for review under G. L. c. 112, § 64, and docketed it as such. After the board filed the administrative record and both parties filed their briefs, the single justice affirmed the board's final decision and denied all other requests for relief. This appeal followed.

2. Procedure for judicial review. Judicial review of the final decisions of many boards of registration is properly sought by filing a petition in the county court within thirty days of the receipt of notice of the decision. This procedure is established by G. L. c. 112, § 64, and by G. L. c. 30A, § 14 (7). See, e.g., Hamel v. Board of Registration of Funeral Directors & Embalmers, 449 Mass. 1008, 1009, 867 N.E.2d 319 (2007) ; Friedman v. Board of Registration in Med., 414 Mass. 663, 664 & n.1, 609 N.E.2d 1223 (1993). The board in this case, at the end of its written decision, informed Thomann that he could proceed in that fashion, and that is essentially what he did. The single justice also decided the matter under those statutes.

In the case of this particular board, however, another statute applies. General Laws c. 112, § 87BBB (C), states, with respect to decisions of this board, that any person aggrieved by the decision "may appeal to the superior court sitting in equity for the county wherein he resides or has his principal place of business, or to said court sitting in equity for the county of Suffolk" (emphasis added). The statute requires the appeal to be filed in the Superior Court within twenty days of receipt of notification of the board's decision; authorizes the Superior Court to hear all the pertinent evidence and to determine the facts; and authorizes the Superior Court to annul the board's decision if it exceeded the board's authority or to grant other relief as justice and equity may require. Id. Significantly, § 87BBB (C) then also states that "[t]he foregoing remedy shall be exclusive," and further provides that, from the decision of the Superior Court, "the parties shall have all rights of appeal and exception as in other equity cases" (emphasis added). Id. Thus, the statute specific to this particular board, § 87BBB, unlike the more generic statute applicable to boards of registration generally, G. L. c. 112, § 64, identifies the Superior Court, not this court, as the forum for judicial review, and states that this remedy "shall be exclusive."⁴

The notice given by the board at the end of its written decision in this case appeared to give the parties two options for obtaining judicial review of the decision. It informed them that they could proceed either in the county court, pursuant to § 64, or in the Superior Court, pursuant to § 87BBB. That appears to us to be at odds with the plain language of § 87BBB (C), which states that the remedy provided therein shall be exclusive. We encourage parties in future cases to pursue their appeals from this particular board in the Superior Court, pursuant to § 87BBB (C) (see, e.g., Rao v. Board of Registration of Real Estate Brokers & Salesmen, 13 Mass. App. Ct. 922, 922, 430 N.E.2d 867 [1982] ), and we invite the board to consider clarifying its notice so that it is consistent with the language of § 87BBB (C), namely that the remedy provided therein "shall be exclusive."⁵

Even though we believe that Thomann should have sought judicial review in the Superior Court under § 87BBB, and not in the county court directly under § 64, we shall proceed to consider his appeal. The single justice clearly had the authority to transfer the matter that was commenced in this court to the Superior Court; and, vice versa, had it been commenced in the Superior Court, as we believe it should have been, she clearly would have had the authority to transfer it here. See G. L. c. 211, § 4A. See also Beres v. Board of Registration of Chiropractors, 459 Mass. 1012, 1013, 947 N.E.2d 569 (2011).⁶

3. Correctness of the board's decision and sanction. The single justice reviewed the record before her, including the pleadings and the administrative record filed by the board, and affirmed the board's final decision and order. We agree with the single justice that there was no error in the board's decision. See Weinberg v. Board of Registration in Med., 443 Mass. 679, 685, 824 N.E.2d 38 (2005) (under G. L. c. 30A, § 14 [7], court "reviews the decision of the board directly, despite this matter being brought as an appeal of a decision of the single justice").

a. Facts. We summarize the facts stated by the hearing officer, as modified and adopted by the board, reserving other facts for later discussion.⁷ We conclude that the findings were supported by substantial evidence. See Weinberg, 443 Mass. at 685, 824 N.E.2d 38.

Thomann is the sole manager of Boston International Group, LLC (LLC), a Massachusetts limited liability company. Its certificate of organization represented publicly that it would engage in business including "commercial real estate." It does not have its own real estate broker's license. See G. L. c. 112, § 87UU ; 254 Code Mass. Regs. § 2.00(11) (2013). The board found that, "[o]n or about January 3, 2013, Boston International Group, LLC, [doing business as] Boston International Group, entered into a Marketing Agreement for Exclusive Right to Sell (the ‘Marketing Agreement’) real property located at 167 Revere Beach Parkway in Chelsea, Massachusetts (the ‘Property’)." Although the marketing agreement identified only "Boston International Group" and not "Boston International Group, LLC," as the "Broker," substantial evidence supports the board's finding that the LLC was both a party to the agreement and the entity that was actively engaged in the real estate brokering activities for the property. See Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674, 925 N.E.2d 812 (2010). In addition, in August 2013, the LLC (identifying itself in its complaint as "Boston International Group, LLC[, doing business as] The Boston International Group, Ltd") commenced an action in the Superior Court against the other parties to the marketing agreement, alleging breach of the agreement and seeking payment of a brokerage commission to the LLC. The complaint averred:

"5. On January 3, 2013, the Defendants, Nobrega's Inc. and Robert J. Nobrega, individually and as agent of the [Nobrega Nominee] Trust, and the Plaintiff, entered into an Exclusive Right to Sell Agreement (hereinafter ‘the Agreement’), regarding the sale of the Property owned by the Trustee Defendants located at 167 Revere Beach Parkway, Chelsea, Massachusetts.

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