KEVIN UPSHAW vs. KATHARINE GIBBS SCHOOL OF BOSTON, INC., & another. [Note 1]

GREENBERG, J. An enrollment agreement (agreement) dated February 21, 2001, between the plaintiff and the Katharine Gibbs School, lies at the center of this case. The agreement was signed by the plaintiff and the defendant Rosemine Occean, an authorized representative of the school. On appeal, neither party disputes that, at all material times, the school was licensed as required by G. L. c. 75D, § 2, to operate a private business

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school. It is also undisputed that Occean was not a "licensed" representative of the school under G. L. c. 75D, § 7. [Note 2] The question put is whether, thus subscribed, the agreement imposed liability on the plaintiff.

1. The parties filed cross motions for summary judgment on the plaintiff's complaint. The plaintiff claims, as matter of law, that his enrollment agreement was null and void under G. L. c. 75D, § 12, because Occean was not a licensed representative. [Note 3] In allowing summary judgment in favor of the school, a Superior Court judge ruled that the only prohibition on unlicensed school representatives is that they may not solicit potential applicants at their residences. [Note 4]

The burden on the plaintiff, as appellant, is to demonstrate error. Our review of the issues raised by the parties is "confined to an examination of the materials before the court at the time the rulings were made." Fidelity Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195 , 200 (1996), quoting from Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886 , 889-890 n.9 (1987). Voutour v. Vitale,

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761 F.2d 812, 817 (1st Cir. 1985), cert. denied sub nom. Saugus v. Voutour, 474 U.S. 1100 (1986).

In support of its motion for summary judgment, the defendant school furnished the motion judge with an affidavit of its president, David J. Waldron, stating that the Commissioner of Education for the Commonwealth had granted a license to the school to operate a private occupational school for the two-year period ending June 30, 2001; that admissions representatives, like the defendant Occean, are not required to be licensed under G. L. c. 75D, § 6, and do not solicit enrollments or sell courses at the residence of prospective students; and in particular, that Occean "did not solicit enrollments or sell courses to the plaintiff at his residence." [Note 5] The plaintiff furnished a copy of the enrollment agreement, which had been signed by the defendant Occean, in her capacity as a school representative, and the plaintiff. Although the contract does not contain any information concerning where it was executed (viz., whether at the plaintiff's home or at some other location) and, to that extent, is less helpful than one might wish, together with Waldron's affidavit it provided an acceptable basis for the judge to conclude that Occean did not solicit or obtain the plaintiff's enrollment at his home. For his part, the plaintiff filed nothing -- and the record contains nothing -- setting forth facts that unsettled the judge's conclusion. [Note 6] Consequently, there was no genuine issue as to material fact with regard to the issue raised on appeal.

2. The plaintiff contends that § 7 of c. 75D requires that all representatives of a private business school be licensed under

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the statute, whether or not they solicit enrollments at a prospective student's home or residence. It appears, however, that such a requirement does not square with § 6 of the statute, which requires only that such representative be licensed if solicitation or counseling concerning the school program or benefits therefrom occurs at the residence of the prospective student.

The regulations adopted by the Commissioner of Education pursuant to G. L. c. 75D, § 8, also reflect the provisions of § 6 of the statute. Section 3.05(1) of 603 Code Mass. Regs. (1997), provides, "Any individual that the school employs as a sales representative shall be licensed . . . ." Section 3.01 of the same regulation defines "sales representative" as a "person who solicits enrollments of prospective students, at their places of residence within the Commonwealth of Massachusetts . . ." (emphasis supplied).

The plaintiff's interpretation of § 7 would read out of existence the above-described condition in § 6 and strip it of any effect. "We [will] not 'interpret a statute so as to render it or any portion of it meaningless or superfluous.' " Volin v. Board of Pub. Accountancy, 422 Mass. 175 , 179 (1996), quoting from Adamowicz v. Ipswich, 395 Mass. 757 , 760 (1985). Banushi v. Dorfman, 438 Mass. 242 , 245 (2002). Moreover, "a literal reading of a statute [in this case, § 7] is to be avoided if it makes the statute a nullity or causes it to fail of its essential purpose." Cohen v. Commissioner of the Div. of Med. Assistance, 423 Mass. 399 , 409 (1996), cert. denied sub nom. Kokoska v. Bullen, 519 U.S. 1057 (1997). "Statutes concerning a common topic are to be read 'as a whole to produce an internal consistency.' " Massachusetts Assn. of Ins. Agents v. Commissioner of Ins., 425 Mass. 477 , 481 (1997), quoting from Charles C. v. Commonwealth, 415 Mass. 58 , 64 (1993). When this rule is applied, we reach the same conclusion as the motion judge.

Judgment affirmed.