Home ANINA RASTEN vs. COMMONWEALTH.

439 Mass. 1003

April 4, 2003

Anina Rasten appeals from the denial of her petition pursuant to G. L. c. 211, ยง 3, by a single justice of this court. We affirm.

Rasten's petition is virtually identical to the one discussed in Rasten v. District Attorney for the Norfolk Dist., 438 Mass. 1006 (2002). It shares the same flaws. First, Rasten failed to satisfy her burden of creating a record sufficient to substantiate her allegations. See Lu v. Boston Div. of the Hous. Court Dep't, 432 Mass. 1005 , 1005-1006 (2000) (petitioner must demonstrate, not merely allege, violation of substantive right). Second, she failed to demonstrate that she could not obtain her requested relief through some other adequate and effective means. Rasten v. Northeastern Univ., 432 Mass. 1003 , 1003 (2000), cert. denied, 531 U.S. 1168 (2001) (petition properly denied where Rasten failed to demonstrate why appeal or appropriate postjudgment motion would not have provided adequate remedy). If a prosecution arose out of the incident in question, Rasten could have filed a motion seeking the return of her property in the District Court where the prosecution took place. See, e.g., Commonwealth v. Rufo, 429 Mass. 380 , 381 (1999). Alternatively, Rasten could have filed a civil action seeking the return of her property. See, e.g., Giacomozzi v. Braintree, 415 Mass. 1001 (1993).

"Our review is limited to errors of law including abuse of discretion." Commonwealth v. Sowell, 412 Mass. 1009 , 1009 (1992). There was no error. [Note 1]

Judgment affirmed.

Anina Rasten, pro se.

Ellen McCusker Devlin, Assistant District Attorney, for the Commonwealth.


FOOTNOTES

[Note 1] To the extent that Rasten raised issues in her full court brief that were not before the single justice, they are beyond the limited scope of this appeal. Harvey v. Harvey, 424 Mass. 1009 , 1010 (1997).

Home RICHARD W. WENNETT & another, [Note 1] trustees, [Note 2] vs. JUDI A. ROSS & others. [Note 3]

439 Mass. 1003

April 4, 2003

We allowed the plaintiffs' application for direct appellate review. The plaintiffs seek to reform the Richard B. Ross 1996 Irrevocable Life Insurance Trust to correct two alleged scrivener's errors in paragraph 8A of the trust. Specifically, the plaintiffs seek to strike the phrase "[d]uring the lifetime of the Grantor" and replace the reference to "RICHARD B. ROSS" with "JUDI A. ROSS." The trust beneficiaries have all assented to the relief requested. [Note 4]

After a thorough review of the record, we conclude that the trust fails to conform to the settlor's intent because of scrivener's error. Walker v. Walker, 433 Mass. 581 , 587 (2001). Thus, the proposed reforms should be allowed as a matter of Massachusetts law.

Page 1004

A judgment shall be entered in the Probate and Family Court reforming the Richard B. Ross 1996 Irrevocable Life Insurance Trust in the manner set forth in paragraph 27 of the plaintiffs' complaint. The reformation is to be effective as of the date the trust instrument was executed.

So ordered.

Raymond H. Young, Martin M. Fantozzi, & Pamela L. Signorello, for the plaintiffs, submitted a brief.


FOOTNOTES

[Note 1] Stephen R. Karp.

[Note 2] Of the Richard B. Ross 1996 Irrevocable Life Insurance Trust.

[Note 3] Abigail D. Ross, Alison L. Ross, Franklin A. Ross, and the Commissioner of Internal Revenue.

[Note 4] A guardian ad litem appointed by the Probate and Family Court also has assented to the relief requested on behalf of any additional unborn or unascertained beneficiaries.