Opinion
20-P-311
05-05-2021
Christopher DERRICO v. BOARD OF REGISTRATION OF REAL ESTATE BROKERS AND SALESPERSONS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Christopher Derrico, appeals from a judgment of the Superior Court affirming the final decision and order of the Board of Registration of Real Estate Brokers and Salespersons (board) revoking his license to practice as a real estate broker. We affirm.
Background. On May 1, 2014, by way of consent agreement, the plaintiff's license to practice as a real estate broker was suspended for a period of ten months. During that ten-month period, in August and September of 2014, the plaintiff was identified as the listing agent of four properties advertised for rent on the Multiple Listing Service (MLS). The property listings also identified Greater Boston Properties, Inc. (GBP), where the plaintiff was, at all relevant times, the president, registered agent, chief executive officer, and director, as the listing office.
The MLS is a database of residential properties used by real estate brokers to list properties.
As a result of these listings, a complaint was levelled against the plaintiff. On February 10, 2015, following an investigation, the board issued the plaintiff an order to show cause demonstrating why his license should not be further suspended or revoked. In the order to show cause, the board alleged that the plaintiff's conduct constituted, among other things, (1) the engaging in business of or acting as a broker or salesperson without a license, in violation of G. L. c. 112, §§ 65A & 87RR ; (2) the practice in the real estate broker/salesperson profession while his license was suspended, in violation of 254 Code Mass. Regs. § 3.00(14)(b) (2014) and G. L. c. 112, § 65 (b ) ; (3) a knowing substantial misrepresentation, in violation of G. L. c. 112, § 87AAA (a ) ; and (4) unprofessional conduct which undermines the public confidence in the integrity of the real estate profession. The order further provided that the plaintiff had a right to an adjudicatory hearing on the allegations against him, and to exercise that right, the plaintiff was required to request a hearing in writing.
On March 4, 2015, the plaintiff filed an answer, in which he denied committing the violations alleged by the board, but he did not deny that his license had been suspended, by agreement, for a ten-month period or that he was named as the listing agent for four properties during the period of his suspension. The plaintiff also requested a hearing on the allegations against him. On August 11, 2015, prosecuting counsel for the board moved for summary decision, pursuant to 801 Code Mass. Regs. § 1.01(7)(h) (2015), arguing that there were no genuine issues of material fact in dispute, and that the undisputed facts established that the plaintiff committed the alleged violations.
In March 2015, the plaintiff's ten-month suspension expired, and his license was reinstated.
Accompanying the motion, prosecuting counsel for the board submitted the consent agreement signed by the plaintiff, the four property listings on MLS, the order to show cause, the plaintiff's answer to the order to show cause, as well as an email correspondence from MLS notifying the plaintiff that he was not permitted to list properties in the MLS system while his license was suspended.
On September 28, 2015, the plaintiff filed an opposition to the motion. In his opposition, he provided a number of possible explanations for why his name was listed as the agent for the advertised properties during the period of his suspension. He asserted that he was practicing as a real estate broker in the State of New Hampshire, and that an office administrator must have mistakenly named him as the listing agent for properties located in Massachusetts. He also contended that his actions were permissible, under G. L. c. 112, § 87UU, because another real estate broker, whom he had appointed as broker of record for GBP during the period of his suspension, had become disabled due to emotional distress related to his divorce. The plaintiff additionally argued that, because he corrected the error within seventy-one hours of being notified by MLS that he was not permitted to be a listing agent for properties in a State where his license was suspended, there was no violation. None of these assertions were supported by affidavits or other evidence.
The plaintiff also cross-moved to dismiss the motion for summary decision.
General Laws c. 112, § 87UU, provides that, for a corporation to be issued a broker's license, an officer of that corporation must have an active individual broker's license. The statute provides an exception to this requirement where the sole licensed broker severs from the corporation, dies, or becomes disabled. In such an instance, the corporation may continue to transact business for a period not to exceed one year while the corporation exercises "due diligence" in obtaining a new license. G. L. c. 112, § 87UU.
The plaintiff submitted with his opposition a copy of a real estate license issued to GBP on March 15, 2010, with another broker designated as the broker of record, an MLS application completed by the plaintiff using his New Hampshire broker's license, a form completed by the plaintiff discontinuing the substitute broker of record's MLS subscription after the plaintiff's license was reinstated, and medical records concerning the plaintiff's heart condition. The plaintiff also submitted a Connecticut statute which permits, under certain conditions, a real estate broker licensed in another State to enter into commercial real estate transactions within Connecticut. See Conn. Gen. Stat. § 20-3251 (2012).
On February 2, 2016, an administrative hearing officer, concluding that there were no disputed issues of material fact and that summary decision was warranted as a matter of law, allowed the prosecuting counsel's motion. The plaintiff filed two requests for reconsideration of the hearing officer's decision, both of which were denied. A sanctions hearing was conducted on January 26, 2017, at which the plaintiff was permitted to present evidence of mitigating circumstances. At the hearing, the plaintiff testified on his own behalf and submitted, for the first time, a notarized letter from an office administrator at GBP, which stated that she had inadvertently posted the four Massachusetts listings under the plaintiff's name when they should have been listed under another broker's name. ,
The plaintiff testified at the hearing that he did not submit the statement from his office administrator earlier in the proceedings because he was "ultimately ... the one responsible as the president of the corporation."
The letter was not signed under the pains and penalties of perjury.
Following the hearing, the hearing officer issued a tentative decision setting forth her findings, and conclusions while addressing the mitigating evidence presented by the plaintiff. The board adopted the hearing officer's decision, and voted unanimously to revoke the plaintiff's broker's license. The plaintiff appealed the board's decision to the Superior Court, and a Superior Court judge, in a well-written thoughtful decision, affirmed. This appeal followed.
Both prosecuting counsel and the plaintiff were given thirty days to file objections to the tentative decision, but neither did so.
The plaintiff subsequently petitioned the Supreme Judicial Court for a writ of mandamus. A single justice of that court denied the petition but ordered that the record be assembled on the plaintiff's appeal.
Discussion. The plaintiff contends that he had a due process and statutory right to a fact-finding hearing before the board, and absent such a hearing, the board lacked the authority to revoke his license. While G. L. c. 112, § 87BBB (B) and due process required that the plaintiff be given a hearing before his license was revoked, "neither the statute nor due process required the board to hold a hearing to take evidence concerning undisputed facts. Such a hearing would be a meaningless exercise." Kobrin v. Board of Registration in Med., 444 Mass. 837, 846 (2005).
In administrative proceedings, a motion for summary decision may be granted where "there is no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law." 801 Code Mass. Regs. § 1.01(7)(h). Summary decision is the "administrative equivalent" of summary judgment, Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 763 (2010), and, "principles applicable to summary judgment decisions inform our review." Martignetti Grocery Co., v. Alcoholic Beverages Control Comm'n, 96 Mass. App. Ct. 729, 730 n.4 (2019).
To survive a well-supported motion of this nature, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Madsen v. Erwin, 395 Mass. 715, 719 (1985), quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). Here, in opposing the motion for summary decision, the plaintiff did not deny that his license was suspended, nor did he deny that four properties were listed under his name during that period. Instead, he made bald assertions, unsupported by affidavits or other evidence, explaining the potential reasons why this might have occurred. Such a response was insufficient to raise a dispute of material fact. See Community Nat'l Bank v. Dawes, 369 Mass. 550, 559 (1976). The board "could, therefore, properly rely on the summary decision for findings of fact." Kobrin, 444 Mass. at 848.
The plaintiff does not argue on appeal that the undisputed facts were insufficient to establish the alleged violations.
Though the plaintiff was not entitled to an evidentiary hearing where the material facts were undisputed, G. L. c. 112, § 87BBB (B), due process "entitled [him] to a hearing concerning the appropriate sanction and to present mitigating factors or explain his actions." Kobrin, 444 Mass. at 849. See Veksler v. Board of Registration in Dentistry, 429 Mass. 650, 651-652 (1999). The plaintiff received such a hearing, and indeed, he testified and presented mitigating evidence on his own behalf. We accordingly discern no statutory or due process violation in the procedure followed by the board in revoking the plaintiff's license.
The plaintiff also claims that the Superior Court and this court lack jurisdiction to review the board's decision because no fact-finding hearing was conducted. The claim is without merit.
Under G. L. c. 112, § 87BBB (C), the Superior Court has express authority to hear appeals from the board, and in fact, the Supreme Judicial Court has encouraged parties "to pursue their appeals from this particular board in the Superior Court." Thomann v. Board of Registration of Real Estate Brokers & Salesmen, 481 Mass. 1006, 1008 (2018). Once the Superior Court issued a judgment affirming the decision of the board, the plaintiff was entitled to appeal that decision to this court -- an opportunity which he took advantage of -- and, as a result, this court has jurisdiction to review that decision. See G. L. c. 30A, § 15. Neither the Superior Court, nor this court, is deprived of jurisdiction merely because the board relied on summary decision to establish the underlying facts supporting the revocation of the plaintiff's license. See, e.g., Thomann, supra at 1007, 1012 (affirming board's decision suspending license based on facts established by summary decision).
We similarly reject the plaintiff's claim that the proper remedy is through writ of mandamus or certiorari. See Rines v. Justices of the Superior Court, 330 Mass. 368, 371 (1953) ("neither mandamus nor certiorari is to be used as a substitute for ordinary appellate procedure or used at any time when there is another adequate remedy").
Judgment affirmed.