Dickey v. Inspectional Services Department of Boston ( 2019 )

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SJC-12613
JAMES DICKEY & another1 vs. INSPECTIONAL SERVICES
DEPARTMENT OF BOSTON.
April 11, 2019.
Supreme Judicial Court, Superintendence of inferior courts.
Limited Liability Company. Practice, Civil, Standing,
Receiver.
The petitioner James Dickey appeals from a judgment of a
single justice of this court denying his petition for
extraordinary relief pursuant to G. L. c. 211, § 3. Dickey, who
is not represented by counsel, sought relief from an order of
the Housing Court denying his motion to remove a receiver
appointed with respect to real property owned by the other named
petitioner, East Fourth Street, LLC, of which Dickey is
apparently the sole member and manager. We affirm.
The underlying petition to appoint a receiver in the
Housing Court named as defendants "East Fourth Street, LLC" and
James S. Dickey, Manager." Dickey appeared pro se to contest
the appointment of a receiver. The Housing Court rejected
Dickey's arguments and appointed a receiver in an order dated
May 25, 2018. Dickey filed a motion to reconsider or to remove
the receiver. The Housing Court denied the motion in an order
dated June 21, 2018, stating, "To the extent that Mr. Dickey
filed the motion in his individual capacity, he is not a party
and has no standing to appear before the court; if he has filed
the motion in his capacity as manager of the East Fourth Street
LLC, he must be represented by counsel."
1 East Fourth Street, LLC.
2
Dickey initially sought review of the latter order from a
single justice of the Appeals Court pursuant to G. L. c. 231,
§ 118, first par. The single justice declined to grant relief.
Dickey then filed a petition in the county court pursuant to
G. L. c. 211, § 3, again asserting his request to remove the
receiver and arguing that he had standing to seek such relief.
The single justice denied the petition, stating that "[r]elief
under G. L. c. 211, § 3, is available only under exceptional
circumstances, and generally is not available where there are
alternative remedies. . . . The petitioner has not demonstrated
that such extraordinary relief is appropriate here." Dickey now
appeals.
We affirm, for several reasons. First, we agree with the
Housing Court that Dickey, who is not an attorney, cannot
present arguments on behalf of his limited liability company,
which is the owner of the property that has been placed into
receivership. It is well settled under Massachusetts law that,
with one very limited exception not applicable here,
"corporations must appear and be represented in court, if at
all, by attorneys." Varney Enters., Inc. v. WMF, Inc., 402
Mass. 79, 82 (1988). Accord Rental Property Mgt. Servs. v.
Hatcher, 479 Mass. 542, 549 n.7 (2018). We have applied this
rule both to business corporations, see Varney Enters., Inc.,
supra, and to limited liability companies. See Kurbatzky v.
Commonwealth, 480 Mass. 1008, 1008 n.1 (2018). See also Laverty
v. Massad, 661 F. Supp. 2d 55, 62 (D. Mass. 2009), citing First
Taunton Fin. Corp. vs. Arlington Land Acquisition-99, LLC, Mass.
Super. Ct., No. 034449BLS (Suffolk County Feb. 27, 2006)
(applying Massachusetts law to conclude that "a member of [a
limited liability company] cannot bring an action in his own
name to enforce the rights or redress the injuries of the
[limited liability company]"). This is appropriate because
Massachusetts limited liability companies, like Massachusetts
business corporations, are legal entities with the rights to sue
and be sued separate and apart from their shareholders and
members. See G. L. c. 156C, § 55. Also, as the name implies,
limited liability companies limit the liability of their
members, similarly to corporations with respect to corporate
shareholders. See Cook v. Patient Edu, LLC, 465 Mass. 548, 553
& n.12 (2013). Thus, our observation in Varney Enters., Inc.,
402 Mass. at 82, that "[t]here is no injustice in allowing
natural persons to appear pro se, while requiring persons who
accept the advantages of incorporation to bear the burden of
hiring counsel to sue or defend in court," applies equally to
persons who accept the advantages offered by organizing their
businesses as limited liability companies.
3
Second, as a corollary, we hold that Dickey's ownership
interest in East Fourth Street, LLC, does not give him standing
to raise the claims of the company, pro se, in his individual
capacity. To hold otherwise would be to vitiate the principles
that corporations and limited liability companies are entities
that exist separate and distinct from the individuals who own
them and that for purposes of suing and being sued they must
therefore be represented by attorneys.
Finally, even apart from the question of Dickey's lack of
standing, we note that G. L. c. 211, § 3, is generally not an
appropriate avenue to challenge an order appointing a receiver.
Rather, such orders are immediately appealable to the Appeals
Court under the doctrine of present execution. See, e.g., Albre
v. Sinclair Constr. Co., 345 Mass. 712, 712-713 (1963); Wax v.
Monks, 327 Mass. 1, 2-3 (1951); New England Theatres, Inc. v.
Olympia Theatres, Inc., 287 Mass. 485, 490 (1934), cert. denied
sub nom. E.M. Loew's, Inc. v. New England Theatres, Inc., 55
S. Ct. 509 (1935).
For all of these reasons, the single justice did not err or
abuse her discretion in denying the petition.
Judgment affirmed.
James Dickey, pro se.
Robert S. Arcangeli, Assistant Corporation Counsel,
& Stuart T. Schrier, for the respondent, were present but did
not argue.