NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-802 25-P-993
CHARLES D. CLARKE
vs.
DONNA M. MURPHY.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves the dissolution of the parties'
partnership (Partnership), the assets of which included the
assets of the 158 Adams Realty Trust (Trust), which included a
property in Newton.
Following a judgment in favor of the appellee, Charles D.
Clarke, the judge appointed a receiver, who was "hereby
instructed to take control of the Partnership and Trust assets,
collect the rents, and to sell the assets at Public or Private
sale and to make a final accounting of the Partnership and Trust
assets to the Court." After paying Clarke's reasonable
attorney's fees from the proceeds of the sale of the Partnership
1 Individually and as trustee of the 158 Adams Realty Trust. and Trust assets, "the net proceeds from the operation and sale
of the Partnership and Trust assets shall be equally divided
between Charles D. Clarke and Donna M. Murphy."
Murphy appealed from this judgment to this court, and in a
memorandum and order pursuant to Rule 23.0 of the Rules of the
Appeals Court, as appearing in 97 Mass. App. Ct. 1017 (2020), a
panel of this court affirmed the judgment. See Clarke v.
Murphy, 104 Mass. App. Ct. 1118 (2024) (Clarke I).2 There, in
response to Murphy's argument, we concluded that, "the Trust's
assets, including the Property, are assets of the Partnership,
of which Clarke and Murphy each held a fifty percent interest."
Id.
Murphy sought further appellate review, which was denied.
See Clarke v. Murphy, 494 Mass. 1108 (2024). Subsequently, the
judge ordered the receiver to "market the property . . . for
sale and sell it as soon as possible." On May 7, 2025, a
hearing was held on the receiver's emergency motion for an order
authorizing the receiver to accept an offer to purchase the
property and execute documents relating to the proposed sale.
Murphy opposed this, and on May 8, 2025, the judge issued an
2Contrary to appellant's description, this opinion was unsigned. The panelists, Chief Justice Green and Justices Walsh and Smyth, are listed in order of seniority in the signature block.
2 order (first order) authorizing the receiver to proceed with the
sale of the property. Murphy appealed from the first order.
Subsequently, Murphy sought a stay, which was denied both
in the trial court and by a single justice of this court. On
May 27, 2025, Murphy, purporting to act as trustee of the Trust,
sold the property for $1,325,000 to herself as the sole trustee
of another trust. Clarke filed a complaint for contempt. The
receiver filed an emergency motion pertaining to the complaint
for contempt, and on June 18, 2025, following a hearing, the
judge issued an order (second order) declaring the purported
trustee's sale of the property by Murphy null and void, removing
Murphy as trustee of the trust, and declaring that the receiver
was the only person with the authority to sell the property.
Murphy also appealed from the second order, and her two appeals
were paired for consideration.
Discussion. In our previous decision in Clarke I, we said,
"As established in the Partnership Agreement, Murphy provided an
initial $49,000 in cash to the Trust, and Clarke contributed
$1,000. Accordingly, Murphy initially owned ninety-eight
percent of the beneficial interest in the Trust, while Clarke
only owned two percent. However, the Partnership Agreement
provided that a share of . . . monthly rent payments [paid by
Clarke] would be counted as capital contributions to the Trust
and that Clarke's beneficial interest would increase accordingly
3 until he owned fifty percent of the Trust." We also said, "The
parties created the Trust under the terms of the Partnership
Agreement for the sole purpose of holding legal title to the
Property. The Partnership Agreement required the Trust to
purchase the Property, allocated the parties' beneficial
interest in the Trust, and stipulated the lease terms between
the Trust and [Classic Catering, Incorporated]. Because the
essence of the partnership was the management of the property
through the Trust, both are partnership assets."
Murphy makes a number of arguments in these two appeals.
In her appeal from the first order, she argues that the judge
erred in ordering the sale of a Trust asset. In her appeal from
the second order, she argues that the original judgment left the
Trust undisturbed; that she remains the trustee of the Trust;
that the Trust itself is an asset of the Partnership, but that
the property held in the Trust is not; that on instruction of
the beneficiary, she was required to sell the property; that
nothing in the judgment limited her authority to sell the Trust
property; that her removal as trustee was an abuse of
discretion; and that the receiver is not properly the sole
person with authority to sell the property.
At the root of Murphy's position in both appeals are two
arguments: first, that the Trust property is not an asset of
the Partnership, and second, that the beneficial interests in
4 the property remain as they are listed on the schedule of
beneficiaries created when the Trust was created, with her
(Murphy) holding a ninety-eight percent interest in the
property, and Clarke a two percent interest.
As described above, these issues were already decided
against Murphy in Clarke I. That decision states the law of the
case, see King v. Driscoll, 424 Mass. 1, 7-8 (1996), and
therefore, Murphy's arguments fail.3
3 Murphy also argues that the judge was without authority to remove her as trustee. She is wrong. Under G. L. c. 203, § 706 (b),
"The court may remove a trustee if:
(1) the trustee has committed a serious breach of trust;
(2) there is a lack of cooperation among co-trustees that substantially impairs the administration of the trust;
(3) because of unfitness, unwillingness or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
(4) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust and a suitable co-trustee or successor trustee is available."
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-802 25-P-993
CHARLES D. CLARKE
vs.
DONNA M. MURPHY.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves the dissolution of the parties'
partnership (Partnership), the assets of which included the
assets of the 158 Adams Realty Trust (Trust), which included a
property in Newton.
Following a judgment in favor of the appellee, Charles D.
Clarke, the judge appointed a receiver, who was "hereby
instructed to take control of the Partnership and Trust assets,
collect the rents, and to sell the assets at Public or Private
sale and to make a final accounting of the Partnership and Trust
assets to the Court." After paying Clarke's reasonable
attorney's fees from the proceeds of the sale of the Partnership
1 Individually and as trustee of the 158 Adams Realty Trust. and Trust assets, "the net proceeds from the operation and sale
of the Partnership and Trust assets shall be equally divided
between Charles D. Clarke and Donna M. Murphy."
Murphy appealed from this judgment to this court, and in a
memorandum and order pursuant to Rule 23.0 of the Rules of the
Appeals Court, as appearing in 97 Mass. App. Ct. 1017 (2020), a
panel of this court affirmed the judgment. See Clarke v.
Murphy, 104 Mass. App. Ct. 1118 (2024) (Clarke I).2 There, in
response to Murphy's argument, we concluded that, "the Trust's
assets, including the Property, are assets of the Partnership,
of which Clarke and Murphy each held a fifty percent interest."
Id.
Murphy sought further appellate review, which was denied.
See Clarke v. Murphy, 494 Mass. 1108 (2024). Subsequently, the
judge ordered the receiver to "market the property . . . for
sale and sell it as soon as possible." On May 7, 2025, a
hearing was held on the receiver's emergency motion for an order
authorizing the receiver to accept an offer to purchase the
property and execute documents relating to the proposed sale.
Murphy opposed this, and on May 8, 2025, the judge issued an
2Contrary to appellant's description, this opinion was unsigned. The panelists, Chief Justice Green and Justices Walsh and Smyth, are listed in order of seniority in the signature block.
2 order (first order) authorizing the receiver to proceed with the
sale of the property. Murphy appealed from the first order.
Subsequently, Murphy sought a stay, which was denied both
in the trial court and by a single justice of this court. On
May 27, 2025, Murphy, purporting to act as trustee of the Trust,
sold the property for $1,325,000 to herself as the sole trustee
of another trust. Clarke filed a complaint for contempt. The
receiver filed an emergency motion pertaining to the complaint
for contempt, and on June 18, 2025, following a hearing, the
judge issued an order (second order) declaring the purported
trustee's sale of the property by Murphy null and void, removing
Murphy as trustee of the trust, and declaring that the receiver
was the only person with the authority to sell the property.
Murphy also appealed from the second order, and her two appeals
were paired for consideration.
Discussion. In our previous decision in Clarke I, we said,
"As established in the Partnership Agreement, Murphy provided an
initial $49,000 in cash to the Trust, and Clarke contributed
$1,000. Accordingly, Murphy initially owned ninety-eight
percent of the beneficial interest in the Trust, while Clarke
only owned two percent. However, the Partnership Agreement
provided that a share of . . . monthly rent payments [paid by
Clarke] would be counted as capital contributions to the Trust
and that Clarke's beneficial interest would increase accordingly
3 until he owned fifty percent of the Trust." We also said, "The
parties created the Trust under the terms of the Partnership
Agreement for the sole purpose of holding legal title to the
Property. The Partnership Agreement required the Trust to
purchase the Property, allocated the parties' beneficial
interest in the Trust, and stipulated the lease terms between
the Trust and [Classic Catering, Incorporated]. Because the
essence of the partnership was the management of the property
through the Trust, both are partnership assets."
Murphy makes a number of arguments in these two appeals.
In her appeal from the first order, she argues that the judge
erred in ordering the sale of a Trust asset. In her appeal from
the second order, she argues that the original judgment left the
Trust undisturbed; that she remains the trustee of the Trust;
that the Trust itself is an asset of the Partnership, but that
the property held in the Trust is not; that on instruction of
the beneficiary, she was required to sell the property; that
nothing in the judgment limited her authority to sell the Trust
property; that her removal as trustee was an abuse of
discretion; and that the receiver is not properly the sole
person with authority to sell the property.
At the root of Murphy's position in both appeals are two
arguments: first, that the Trust property is not an asset of
the Partnership, and second, that the beneficial interests in
4 the property remain as they are listed on the schedule of
beneficiaries created when the Trust was created, with her
(Murphy) holding a ninety-eight percent interest in the
property, and Clarke a two percent interest.
As described above, these issues were already decided
against Murphy in Clarke I. That decision states the law of the
case, see King v. Driscoll, 424 Mass. 1, 7-8 (1996), and
therefore, Murphy's arguments fail.3
3 Murphy also argues that the judge was without authority to remove her as trustee. She is wrong. Under G. L. c. 203, § 706 (b),
"The court may remove a trustee if:
(1) the trustee has committed a serious breach of trust;
(2) there is a lack of cooperation among co-trustees that substantially impairs the administration of the trust;
(3) because of unfitness, unwillingness or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
(4) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust and a suitable co-trustee or successor trustee is available."
Given what the judge found to be Murphy's use of her position as trustee to wrongfully purport to sell the property and to record the deed in order to thwart the court's lawful order issued in the beneficiaries' best interests -- i.e., a serious breach of trust -- the judge's decision to remove her was well within his discretion.
5 We agree with Clarke that Murphy's two appeals, like her
previous one, are frivolous, and therefore award fees and costs.
In accordance with the procedure specified in Fabre v. Walton,
441 Mass. 9, 10-11 (2004), Clarke may, within fourteen days of
the issuance of the rescript in this matter, submit an
application for his reasonably incurred attorney's fees and
costs with the appropriate supporting materials. Murphy shall
have fourteen days thereafter to file a response to that
application.
Although it is not strictly relevant to our decision, which
rests on the law of the case, we note that the parties written
partnership agreement (Partnership Agreement) itself states that
"in consideration of the mutual covenants and promises" it
contains, the partners agreed on initial contributions of the
parties to the Trust and their beneficial interests at that time
and said, "in exchange for Charles D. Clarke's personal and
individual guarantee on the Note, Mortgage and Lease, two-thirds
of the monthly rent ($1,200) paid by the Lessee [(Clarke)] shall
be applied toward that portion of equity for Charles D. Clarke
until Charles D. Clarke's capital contribution is equal to Donna
M. Murphy's contribution of $49,000 as described in Schedule A
of this document."
Schedule A itself, labelled "Schedule of Beneficial
Interests," shows the anticipated date of each contribution by
6 Clarke and the "% of Trust" that would be owned by the parties
respectively, culminating in each owning a fifty percent
beneficial interest beginning on July 10, 2007. The judge found
as a fact that K-1 Forms issued by Murphy as Trustee reflected
that equal ownership interest. And Murphy's own brief in Clarke
I says, in the Statement of the Facts section, "The parties
agreed they would share in the Trust according to the Schedule
of Beneficial Interest attached to the [Partnership Agreement]
as Schedule A." As part of her argument, Murphy stated that the
parties had an agreement "whereby Clarke could gain access to a
portion of Murphy's interest in the Trust." There was no
dispute that at the outset, Murphy owned a ninety-eight percent
interest in the Trust and Clarke owned a two percent interest.
The Partnership Agreement included means for Clarke to equalize
the parties' interests.
Order entered May 8, 2025, affirmed.
Order entered June 18, 2025, affirmed.
By the Court (Rubin, Henry & Wood, JJ.4),
Clerk
Entered: July 2, 2026.
4 The panelists are listed in order of seniority.