KEITH A. GREGORY,
DONALD BIRKBECK, and DANIEL GOLODNER, Plaintiffs, and ASHLEY BIRKBECK, Defendants.
ATTORNEY FOR APPELLANT: DAVID MOONEY, ESQ. DAVID P. MOONEY
ATTORNEY AT LAW ONE
ATTORNEY FOR APPELLEE: JAMES MUNDY, ESQ. WHITNEY MUNDY &
ORDER ON DEFENDANTS' MOTION TO DISMISS
O'Neil, Jr. Justice
case arises out of the administration of a trust executed by
the late Dr. Lawrence Golodner ("Dr. Golodner").
The trusts were marital trusts for the benefit of Gail
Golodner ("Gail"), Dr. Golodner's wife and one
of the co-trustees, during her life, and upon her death the
trust assets were to be distributed to the beneficiaries,
plaintiffs Keith Gregory ("Gregory") and Daniel
Golodner ("Mr. Golodner"). The plaintiffs brought
the instant complaint on May 16, 2017 against defendants
Donald and Ashley Birkbeck, alleging Breach of Fiduciary
Duties (Count I), Unjust Enrichment (Count II), and
Constructive Fraud (Count III). The breach of fiduciary duty
claim is directed at Ashley Birkbeck as the representative of
the estate of Gail Golodner. Although at the time of filing,
Mrs. Birkbeck was not the representative of Gail's
estate; she has since been officially appointed to the
Plaintiffs have brought additional suits against Gail,
Jeffrey Clark, the other co-trustee of the trusts, and others
in Docket No. CV-16-182 and CV-16-183. These cases were
stayed pending resolution of several procedural issues, such
as the appointment of a representative of Gail's estate.
The distribution of Gail's estate is also pending before
the Probate Court, Docket No. 2013-475.
Complaint lays out the following facts. Plaintiffs Keith
Gregory and Daniel Golodner are beneficiaries of the two
trusts that their father, Dr. Lawrence Golodner, executed.
(Compl. ¶¶ 15-16.) The first trust is a Revocable
Trust dated September 26, 1989, amended and restated on June
27, 1995. (Compl. ¶ 13) The trust is an Irrevocable
Trust Agreement dated August 9, 1995 (together, the
"Trusts"). (Compl. ¶ 8.) These Trusts created
marital trusts for Dr. Golodner's late wife, Gail.
(Compl. ¶ 11.) After her death, the Trusts' assets
were to pass to Gregory and Mr. Golodner. (Compl.
the Trusts named Gail Golodner and Sidney White as
co-trustees. (Compl. ¶ 17.) However, Jeffrey Clark was
appointed to serve as co-trustee of both Trusts alongside
Gail. (Compl. ¶ 20.) Donald and Ashley Birkbeck cared
for Gail in the years before her death due to her age and
declining health. (Compl. ¶¶ 58-58.)
their complaint, plaintiffs first allege that Gail and Clark
violated their fiduciary duties to them as beneficiaries of
the trusts. Specifically, they allege that the trustees did
not provide plaintiffs with any accountings or sufficient
information about the Trusts despite requests for such
information. (Compl. ¶¶ 18-28.) Plaintiffs also
contend that Gail used her trustee powers to make
distributions in violation of the trust agreements for her
personal benefit. (Compl. ¶¶ 29-30.) They also
allege that Clark made such distributions at Gail's
direction and knew and/or did not stop the alleged breaches
from happening. (Compl. ¶ 31.)
Plaintiffs further allege that Gail improperly borrowed money
from both trusts. (Compl. ¶¶ 33-34.) Specifically,
plaintiffs point to two loans from the trusts to Gail
totaling $170, 000 that are secured by mortgages on
Gail's property. (Compl. ¶ 34.) Plaintiffs assert
that this money was then distributed to Donald and Ashley
Birkbeck in exchange for receiving a life estate in property
in South Berwick in violation of the trust agreements.
(Compl. ¶ 35.) They further allege that Gail told Mr.
Gregory that she was paying Donald Birkbeck to build her a
home on the South Berwick property. (Compl. ¶ 36.)
Plaintiffs again assert that Mr. Birkbeck's payment came
from improperly distributed trust money. (Compl. ¶¶
their unjust enrichment claim, plaintiffs allege that
defendants "engaged in financial transactions, beyond
compensation for services rendered" (Compl. ¶ 58.);
that Gail never took possession of the South Berwick property
before her death (Compl. ¶ 60.); and that Gail received
inadequate compensation for transactions with the Birkbecks.
(Compl. ¶ 61.)
in Count III, plaintiffs allege that defendants engaged in
the transactions knowing of Gail's health, finances, and
status as co-trustee. Consequently, plaintiffs argue
"that the transactions placed an unreasonable mortality
risk of loss upon the trust assets and accepted cash and
compensation with knowledge that the funds were derived from
the Lawrence Golodner Trust Assets." (Compl. ¶ 65.)
moved to dismiss the Complaint on June 20, 2017. On July 17,
2017, plaintiffs moved for an entry of default and default
judgment against the ...