Home HELEN STAGMAN, trustee, vs. BERNARD GITLIN & others.

5 Mass. App. Ct. 803

March 29, 1977

The plaintiff's request for appellate review is expressly limited to the Superior Court's rejection of her claim, as the successor trustee of Peter Realty Trust (Peter), that Gitlin knowingly participated in a breach of trust when, in July of 1972, he accepted from Alexander Stagman (Stagman), as the then trustee of Peter, a fourth pledge of the mortgage note owned by Peter (as well as a pledge of the general credit of Peter) to secure the performance of the contract of January 25, 1972, by which Forstaborn Corporation (Forstaborn), Stagman as an individual, and Fortin had severally agreed with Gitlin to construct certain buildings on land owned by Gitlin. See Loring v. Salisbury Mills, 125 Mass. 138 , 150-153 (1878); Allen v. Puritan Trust Co. 211 Mass. 409 , 421 (1912); Restatement (Second) of Trusts Section 297, comment m (1957). 1. The essential predicate of that claim is that Peter had no interest in either Forstaborn or the due performance of the construction contract at the time of its execution. The master made no express finding on that point. However, it is clear from his subsidiary findings that when the plaintiff, as the successor trustee, made her pre-action tender of $30,000 in an effort to redeem the same mortgage note from all the various pledges thereof which had been made by Stagman, she recognized the validity of the apparently related transaction by which "Stagman, as Trustee of Peter Realty Trust, and individually, and Fortin borrowed $8,000.00 additional" from Gitlin and his associates one day following the execution of the construction contract. Consistent with that particular transaction is an exhibit before the master (No. 23) which the plaintiff has gratuitously reproduced in her appendix and which indicates that Stagman endorsed over to Peter for deposit in its account a check for $1,000 that Gitlin drew to the order of Forstaborn approximately three weeks following the execution of the construction contract. The record contains no support whatsoever for the numerous assertions in the plaintiff's brief that the mortgage note was the sole asset of Peter. In our view the plaintiff has failed to establish the essential predicate of the only claim still pressed. 2. Nor is there anything in the record which would compel an inference that an investment of the assets of Peter in Forstaborn would have constituted a violation of any fiduciary duty Stagman owed to the beneficiaries of Peter.

Judgment affirmed.

Home COMMONWEALTH vs. PHILIP J. CRESTA.

5 Mass. App. Ct. 803

March 29, 1977

The defendant appeals from the denials of his "Motion for a New Trial" and "Motion to Withdraw Guilty Plea" (which the judge correctly treated as a single motion) on three indictments to which he had pleaded guilty in 1945 and on two of which he had received concurrent indeterminate sentences to the Massachusetts Reformatory. The proceedings on the motion were held pursuant to the provisions of G. L. c. 278, Sections 33A-33G. 1. We decline the defendant's invitation to rule that Boykin v. Alabama, 395 U.S. 238 (1969), be given retroactive effect. See Commonwealth v. Leate, 367 Mass. 689 , 693 (1975), and cases cited therein. 2. The judge was correct in ruling that the

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defendant had the burden of proving (a) noncompliance with the requirement of G. L. c. 119, Section 74 (as amended through St. 1933, c. 196, Section 1), that "[c]riminal proceedings shall not be begun against any child . . . unless proceedings against him as a delinquent child have been begun and dismissed as required by section sixty-one" and (b) that his guilty pleas had not been made voluntarily and intelligently. Commonwealth v. Bernier, 359 Mass. 13 , 15-16 (1971). Commonwealth v. Leate, supra. Commonwealth v. Kozerski, 1 Mass. App. Ct. 106 , 110-111 (1973), S.C. 364 Mass. 833 (1974). Commonwealth v. Bolduc, ante, 115, 118 (1977). 3. The defendant contends that G. L. c. 221, Section 27A, and S.J.C. Rule 3:08, 351 Mass. 785 (1966), operated to deprive him of his rights to due process in that the unavailability of the District Court records and the transcript of proceedings in the Superior Court have deprived him of the opportunity to meet his burden of proof on his motion. We do not reach any such constitutional question as there is no indication that the defendant caused any search to be made of the records of the District Court or that the clerk of that court was summoned to produce records pertaining to the proceedings in that court which were of concern; nor does the letter from the court reporter state anything more than that a diligent search of the stenographic records of the Superior Court had been made and that none could be found relating to the cases now before us. There is no indication in the record that any claimed unavailability of those documents was in any way the result of action taken pursuant to that statute or that rule. Nor does it appear that this issue was raised in the trial court. Young v. Mobil Oil Corp. 4 Mass. App. Ct. 805 (1976).

Judgment affirmed.