Home SUE DUARTE v. RANI ALEXANDER and others [Note 1]

2016 Mass. App. Div. 30

December 11, 2015 - February 25, 2016

Appellate Division Northern District

Court Below: District Court, Malden Division

Present: Swan, P.J., Singh & Crane, JJ.

Jordan L. Shapiro for the plaintiff.

No brief filed for the defendants.

CRANE, J. The plaintiff seeks an award of treble damages in this action where she was awarded single damages for nonpayment of a commission she had earned and was due as a real estate salesperson. She received a default judgment for single damages against three defendants, Homequest Realty LLC, formerly known as Exit Homequest Realty LLC (“Exit”), Rani Alexander, and Samir Desai. Alexander and Desai (collectively, “Managers”) were the managers of the defendant Exit. After being awarded single damages by default in the amount of $15,105.00, the plaintiff timely filed a motion to amend judgment claiming that G.L. c. 149, § 150, mandated that the damages be trebled. Her motion was denied without explanation, and she has appealed.

The undisputed facts are that the plaintiff was employed as a real estate salesperson by the defendant Exit. In December, 2013, the owner of a property in Malden engaged the plaintiff to market it for sale. On or about April 11, 2014, the owner of the Malden property and a buyer signed a purchase and sale agreement. Exit received $16,500.00 from the buyer to be held in escrow. The sale closed on July 15, 2014, and the plaintiff then became entitled to be paid $15,105.00 from Exit.

The plaintiff and the defendant Desai communicated by e-mail several times in late July, 2014, during which Desai described how payment in full would be made. Desai never disputed that payment was due to the plaintiff. However, none was made, and the plaintiff filed a wage complaint with the Office of the Attorney General, and commenced this action.

As a salesperson, [Note 2] the plaintiff is entitled to recover pursuant to G.L. c. 149, § 148, which authorizes recovery for unpaid wages and commissions, including commissions on sales that are due and payable and definitely determined. Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 776 (2007). The provisions of G.L. c. 149, § 150,

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as amended by St. 2008, c. 80, § 5, mandate that the court treble any award of single damages under § 148. Weber v. Coast to Coast Med., Inc., 83 Mass. App. Ct. 478, 482483 (2013).

Exit employed the plaintiff as a salesperson, not the defendant Managers. However, the Managers performed the same duties as the president and treasurer of a business corporation by controlling, directing, or participating to a substantial degree in formulating and determining the business of the limited liability company. Where the provisions of par. 6 of § 148 make the president and treasurer of a corporation liable for any nonpayment of wages for any employee, we treat the Managers here in the same manner and award treble damages against them as well as Exit. Cook v. Patient Edu, LLC, 465 Mass. 548, 548-549 (2013).

The plaintiff expressly waived any attorney’s fees before the trial court in her motion to amend. General Laws c. 149, § 150, authorizes an award of fees. Killeen v. Westban Hotel Ventures, LP, 69 Mass. App. Ct. 784, 788796 (2007). However, the plaintiff now seeks appellate attorney’s fees. As the prevailing party, the plaintiff may apply for her appellate attorney’s fees in accordance with Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989), with this Appellate Division within fourteen days of the date of this opinion.

For the foregoing reasons, the matter is returned for entry of an amended judgment that trebles the amount of damages to $45,315.00 against all defendants.


[Note 1] Samir Desai and Homequest Realty LLC, formerly known as Exit Homequest Realty LLC.

[Note 2] Since it is uncontested that the plaintiff was a salesperson, we need not address whether a broker who may be an independent contractor would be entitled to relief under §§ 148 and 150. Whether parties who earn commissions for selling real estate are independent contractors or employees was not resolved in Monell v. Boston Pads LLC, 471 Mass. 566 (2015).