In the Matter of Jacobson
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Opinion
In the Matter of Andrea Jacobson No. 1741, Sept. Term 2021 Opinion by Leahy, J.
Estates & Trusts Law > Wills and Revocable Trusts > Standing > Pre-Mortem Undue Influence Contest
To have standing, a plaintiff must have a legally protected interest, whether provided by statute or arising out of contract, tort, or property ownership. State Ctr., LLC v. Lexington Charles P’ship, 438 Md. 451, 500-02 (2014). Appellant sought to bring a pre-mortem contest to her mother’s wills and revocable trust agreements. As merely a presumptive heir, however, appellant possessed no property interest in her mother’s assets because it is “only after the death of the ancestor that [her] children are entitled to the status of very heirs, which will enable them to assert a right to property derived through [her] by inheritance.” Sellman v. Sellman, 63 Md. 520, 525 (1885). Accordingly, appellant lacked standing to challenge her mother’s wills and revocable trust agreements because she had no property interest in her mother’s trust assets or potential probate estate.
Estates & Trusts Law > Powers of Attorney > Estates and Trusts Article § 17-103 > Standing
Estates and Trusts Article (“ET”) § 17-103(a)(4) confers standing on a principal’s descendant to petition a court to review the actions of an attorney-in-fact and “construe” a power of attorney. Considering ET § 17-103’s main purpose to detect and stop agent abuse, an action to “construe” a power of attorney under ET § 17-103 must be filed in the context of a dispute concerning abuses of power by the attorney-in-fact while the principal is incapacitated. Here, although appellant could qualify as a proper party to bring a claim under ET § 17-103(a)(4) insofar as she is a descendant, her complaint did not allege any misuse or abuse of power by the attorney-in-fact and therefore failed to properly state a cause of action under ET § 17-103. Accordingly, under our “cause of action” approach to standing, because appellant was not “not entitled to invoke the judicial process in [this] particular instance[,]” her claim was properly dismissed for lack of standing. State Ctr., 438 Md. at 502. Circuit Court for Montgomery County Case No. 171447-FL
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1741
September Term, 2021 ______________________________________
IN THE MATTER OF ANDREA JACOBSON ______________________________________
Arthur, Leahy, Sharer, J. Frederick (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Leahy, J. ______________________________________
Filed: December 6, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-12-06 11:14-05:00
Gregory Hilton, Clerk Appellant Amy Silverstone (“Amy”) filed a petition for guardianship on October 2,
2020, in the Circuit Court for Montgomery County, Maryland, to obtain control over the
person and property of her mother, Andrea Jacobson (“Andrea”).1 Amy amended the
guardianship petition to include claims normally reserved to estate administration while
her mother was still alive. At its core, this appeal concerns Amy’s effort to set aside her
mother’s estate planning documents (including several wills, revocable trust agreements,
and powers of attorney) conferring authority upon appellee/cross-appellant Lisa Jacobson
(“Lisa”)—Andrea’s sister and Amy’s aunt. Amy contends that these documents were the
product of undue influence and should therefore be declared null and void. Andrea and
Lisa insist that Amy lacks standing to contest these estate documents based on undue
influence because Andrea is still alive.
Amy challenges two orders issued by the circuit court. First, the order entered on
November 2, 2021, dismissing the remaining claim in Amy’s Second Amended Petition
for Guardianship; specifically, Count IV, setting out her undue influence challenge to
Andrea’s estate planning documents. Second, the order entered on December 13, 2021,
denying Amy’s motion to reconsider the November 2 order and striking Amy’s Third
Amended Petition, filed after judgment was entered. In their cross-appeal, Andrea and
Lisa contest the circuit court’s order denying their joint motion for sanctions entered on
December 17, 2021.
1 In this opinion, we will refer to the parties by their first names to avoid confusion as to which Ms. Jacobson (i.e., Lisa or Andrea) we are referring. Accordingly, the parties present four questions for our review.2 Amy’s questions,
here consolidated and rephrased based on the issues addressed in her briefing and at oral
argument, are:
I. Did the circuit court err in dismissing Count IV of the Second Amended Petition due to lack of standing and failure to state a claim upon which relief can be granted?
II. Did the circuit court abuse its discretion in denying Amy’s motion for reconsideration?
III. Did the circuit court abuse its discretion in denying Amy leave to amend and striking her Third Amended Petition without declaring the rights of the parties after her claims had been dismissed?
Andrea and Lisa’s question condenses to the following:
2 In her principal brief, Amy presented the following three questions for our review:
I. “The Court dismissed Petitioner’s Second Amended Complaint Pursuant to Rule 2-303 (conclusory statement and no facts) and because Petitioner’s Complaint was premature and Petitioner was without standing. Was this ruling correct?” II. “Petitioner filed a Third Amended Complaint with alleged new facts and a new count, i.e. Declaratory Relief. Petitioner’s Third Amended Complaint included a Motion for Leave to Amend and for Reconsideration. The Court denied Petitioner’s Motion and Third Amended Complaint. Was this ruling correct?” III. “Did the Circuit Court err when it dismissed Appellant’s Complaint for Declaratory Relief without making a written declaration of the parties’ rights? [Sibley v. Doe, Supra, at 649]?”
Andrea and Lisa, in turn, presented the following question for our review in their cross- appeal:
IV. “Did the Circuit Court abuse its discretion in denying Andrea and Lisa Jacobson’s joint Motion for Sanctions for filing a wholly deficient Motion to Amend and Reconsider and a Third Amended Complaint after the Circuit Court dismissed the Second Amended Complaint?”
2 IV. Did the circuit court abuse its discretion in denying Andrea and Lisa’s motion for sanctions?
We discern no error or abuse of discretion by the circuit court. First, we hold that
the court correctly concluded that Amy lacked standing to challenge the validity of
Andrea’s wills and revocable trust agreements while Andrea is still living because Amy
has no property interest in her mother’s trust assets or potential probate estate other than a
remote expectancy as a presumptive intestate heir. Also, because Amy failed to allege any
misuse or abuse of power by Lisa in her capacity as agent, she was not able to invoke the
judicial process to challenge Andrea’s durable, statutory form, and health care powers of
attorney. Moreover, the circuit court properly dismissed Count IV because Amy relied
entirely on bald and conclusory allegations in her pleading.
Second, we hold that the circuit court did not abuse its discretion in denying Amy’s
motion to reconsider because Amy’s deficient motion did not bring the court’s attention to
any errors that it was required to rectify. Instead, Amy simply provided page-length
quotations from two prior cases setting out black-letter law on undue influence without any
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In the Matter of Andrea Jacobson No. 1741, Sept. Term 2021 Opinion by Leahy, J.
Estates & Trusts Law > Wills and Revocable Trusts > Standing > Pre-Mortem Undue Influence Contest
To have standing, a plaintiff must have a legally protected interest, whether provided by statute or arising out of contract, tort, or property ownership. State Ctr., LLC v. Lexington Charles P’ship, 438 Md. 451, 500-02 (2014). Appellant sought to bring a pre-mortem contest to her mother’s wills and revocable trust agreements. As merely a presumptive heir, however, appellant possessed no property interest in her mother’s assets because it is “only after the death of the ancestor that [her] children are entitled to the status of very heirs, which will enable them to assert a right to property derived through [her] by inheritance.” Sellman v. Sellman, 63 Md. 520, 525 (1885). Accordingly, appellant lacked standing to challenge her mother’s wills and revocable trust agreements because she had no property interest in her mother’s trust assets or potential probate estate.
Estates & Trusts Law > Powers of Attorney > Estates and Trusts Article § 17-103 > Standing
Estates and Trusts Article (“ET”) § 17-103(a)(4) confers standing on a principal’s descendant to petition a court to review the actions of an attorney-in-fact and “construe” a power of attorney. Considering ET § 17-103’s main purpose to detect and stop agent abuse, an action to “construe” a power of attorney under ET § 17-103 must be filed in the context of a dispute concerning abuses of power by the attorney-in-fact while the principal is incapacitated. Here, although appellant could qualify as a proper party to bring a claim under ET § 17-103(a)(4) insofar as she is a descendant, her complaint did not allege any misuse or abuse of power by the attorney-in-fact and therefore failed to properly state a cause of action under ET § 17-103. Accordingly, under our “cause of action” approach to standing, because appellant was not “not entitled to invoke the judicial process in [this] particular instance[,]” her claim was properly dismissed for lack of standing. State Ctr., 438 Md. at 502. Circuit Court for Montgomery County Case No. 171447-FL
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1741
September Term, 2021 ______________________________________
IN THE MATTER OF ANDREA JACOBSON ______________________________________
Arthur, Leahy, Sharer, J. Frederick (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Leahy, J. ______________________________________
Filed: December 6, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-12-06 11:14-05:00
Gregory Hilton, Clerk Appellant Amy Silverstone (“Amy”) filed a petition for guardianship on October 2,
2020, in the Circuit Court for Montgomery County, Maryland, to obtain control over the
person and property of her mother, Andrea Jacobson (“Andrea”).1 Amy amended the
guardianship petition to include claims normally reserved to estate administration while
her mother was still alive. At its core, this appeal concerns Amy’s effort to set aside her
mother’s estate planning documents (including several wills, revocable trust agreements,
and powers of attorney) conferring authority upon appellee/cross-appellant Lisa Jacobson
(“Lisa”)—Andrea’s sister and Amy’s aunt. Amy contends that these documents were the
product of undue influence and should therefore be declared null and void. Andrea and
Lisa insist that Amy lacks standing to contest these estate documents based on undue
influence because Andrea is still alive.
Amy challenges two orders issued by the circuit court. First, the order entered on
November 2, 2021, dismissing the remaining claim in Amy’s Second Amended Petition
for Guardianship; specifically, Count IV, setting out her undue influence challenge to
Andrea’s estate planning documents. Second, the order entered on December 13, 2021,
denying Amy’s motion to reconsider the November 2 order and striking Amy’s Third
Amended Petition, filed after judgment was entered. In their cross-appeal, Andrea and
Lisa contest the circuit court’s order denying their joint motion for sanctions entered on
December 17, 2021.
1 In this opinion, we will refer to the parties by their first names to avoid confusion as to which Ms. Jacobson (i.e., Lisa or Andrea) we are referring. Accordingly, the parties present four questions for our review.2 Amy’s questions,
here consolidated and rephrased based on the issues addressed in her briefing and at oral
argument, are:
I. Did the circuit court err in dismissing Count IV of the Second Amended Petition due to lack of standing and failure to state a claim upon which relief can be granted?
II. Did the circuit court abuse its discretion in denying Amy’s motion for reconsideration?
III. Did the circuit court abuse its discretion in denying Amy leave to amend and striking her Third Amended Petition without declaring the rights of the parties after her claims had been dismissed?
Andrea and Lisa’s question condenses to the following:
2 In her principal brief, Amy presented the following three questions for our review:
I. “The Court dismissed Petitioner’s Second Amended Complaint Pursuant to Rule 2-303 (conclusory statement and no facts) and because Petitioner’s Complaint was premature and Petitioner was without standing. Was this ruling correct?” II. “Petitioner filed a Third Amended Complaint with alleged new facts and a new count, i.e. Declaratory Relief. Petitioner’s Third Amended Complaint included a Motion for Leave to Amend and for Reconsideration. The Court denied Petitioner’s Motion and Third Amended Complaint. Was this ruling correct?” III. “Did the Circuit Court err when it dismissed Appellant’s Complaint for Declaratory Relief without making a written declaration of the parties’ rights? [Sibley v. Doe, Supra, at 649]?”
Andrea and Lisa, in turn, presented the following question for our review in their cross- appeal:
IV. “Did the Circuit Court abuse its discretion in denying Andrea and Lisa Jacobson’s joint Motion for Sanctions for filing a wholly deficient Motion to Amend and Reconsider and a Third Amended Complaint after the Circuit Court dismissed the Second Amended Complaint?”
2 IV. Did the circuit court abuse its discretion in denying Andrea and Lisa’s motion for sanctions?
We discern no error or abuse of discretion by the circuit court. First, we hold that
the court correctly concluded that Amy lacked standing to challenge the validity of
Andrea’s wills and revocable trust agreements while Andrea is still living because Amy
has no property interest in her mother’s trust assets or potential probate estate other than a
remote expectancy as a presumptive intestate heir. Also, because Amy failed to allege any
misuse or abuse of power by Lisa in her capacity as agent, she was not able to invoke the
judicial process to challenge Andrea’s durable, statutory form, and health care powers of
attorney. Moreover, the circuit court properly dismissed Count IV because Amy relied
entirely on bald and conclusory allegations in her pleading.
Second, we hold that the circuit court did not abuse its discretion in denying Amy’s
motion to reconsider because Amy’s deficient motion did not bring the court’s attention to
any errors that it was required to rectify. Instead, Amy simply provided page-length
quotations from two prior cases setting out black-letter law on undue influence without any
explanation as to how the court erred in dismissing her petition on grounds of standing.
Third, we discern no abuse of discretion in the circuit court’s decisions to (1) deny
Amy leave to amend, and (2) strike Amy’s Third Amended Petition filed after judgment
was entered and before obtaining leave to file it under Maryland Rule 2-322(c). Nor did
the circuit court err, as Amy contends, in declining to issue a declaration of the parties’
rights by striking the improper pleading without reaching its merits.
3 Fourth, we hold the circuit court did not abuse its discretion in denying Andrea and
Lisa’s joint motion for sanctions against Amy for filing her motion to reconsider the court’s
November 2 order. Even if Andrea and Lisa could show that Amy brought her motion to
reconsider in bad faith or without substantial justification, the circuit court was well within
its discretion to deny an award of sanctions.
For these reasons, we affirm the judgment of the circuit court.
BACKGROUND
Andrea is a 72-year-old woman currently living in Rockville, Maryland. She has
been diagnosed with dementia, memory impairment, and cognitive impairment. Andrea is
cared for by a variety of specialists, including a geriatric case manager, neurologist,
primary-care physician, several financial and tax professionals, and her sister, Lisa. She
lives primarily off the income produced by a testamentary trust created by her mother (the
“Virginia Trust”), of which she is co-trustee and lifetime income beneficiary along with
Lisa.3
Andrea’s immediate family includes Lisa, Amy, and her grandson, Bryce—Amy’s
son. Amy and Andrea appeared to enjoy a loving relationship that became strained over
3 Pursuant to a 2011 consent order entered by the Circuit Court for Arlington County, Virginia–which has jurisdiction over the trust because it is funded almost exclusively by real property located there–the prior trustees tendered their resignations and were replaced by Lisa and Andrea. The consent order also specified that Amy, who is a remainder beneficiary of the Trust and stands to receive a distribution of the principal upon the death of Andrea and Lisa, is to serve as successor trustee for Andrea when she is no longer able to serve. Although, as explained below, Amy was removed as a beneficiary under the Andrea Susan Jacobson Revocable Trust, the record does not reflect that the 2011 consent order was ever modified to remove Amy as a beneficiary under the Virginia Trust.
4 time, leading to their eventual estrangement. In particular, following two lengthy
exchanges over text on July 10, 2018, and February 22, 2019, communication between
Amy and her mother essentially ceased. In Amy’s view, the parties’ falling out stemmed
over money and various loans from Andrea to Amy. Amy texted Andrea that it was “awful
and disgusting that money is more important to you than your relationship with Bryce and
I.” Andrea, in turn, responded that “money is only a part of it” and that she remained
disappointed that “I never hear from you unless you want something.” As the filial
relationship turned more and more acrimonious, Andrea had already begun reorganizing
her affairs.
In 2015, Andrea executed a series of documents which conferred upon Lisa the
authority to manage Andrea’s care and finances. On December 2, 2015, Andrea executed
a durable power of attorney (the “POA”) naming Lisa as her agent and providing her with
broad powers to manage Andrea’s affairs. The POA also named Julia Lipps-Joachim
(“Julia”), Lisa’s daughter and Andrea’s niece, as the successor agent in the event Lisa could
no longer serve. On the same day, Andrea executed a Maryland Statutory Form Financial
Power of Attorney also naming Lisa and Julia as agent and successor agent respectively.
Along the same vein, Andrea executed an advanced medical directive authorizing Lisa, or
Julia in her stead, to make end-of-life medical decisions for Andrea. In June of 2019, those
documents were amended to swap Lisa’s other daughter, Emily Treanor (“Emily”), for
Julia as the successor agent.
From 2016 through 2019, Andrea also restructured her estate. On April 27, 2016,
Andrea executed an Amended Trust Agreement for the Andrea Susan Jacobson Revocable
5 Trust naming Lisa as trustee and remainder beneficiary, with Bryce as contingent
remainder beneficiary if Lisa were to predecease Andrea. According to its terms, the Trust
is to pay the income to Andrea for her life and “distribute all right, title, and interest the
Grantor owns in the Grantor’s condominium” in Silver Spring, Maryland. On the same
day, Andrea executed a pour-over will devising her remaining assets to the revocable trust
to be held and distributed according to the terms of the trust and naming Lisa and Julia as
co-personal representatives.
Then, on August 29, 2018, shortly after her falling out with Amy, Andrea executed
a Second Amended Trust Agreement naming Lisa as remainder beneficiary, with Lisa’s
heirs (i.e., Julia and Emily) named as contingent remainder beneficiaries. The August 2018
Trust Agreement, currently in effect, includes a disinheritance clause that states:
After careful thought and consideration, the Grantor does specifically intend, and does hereby by this Trust Agreement, disinherit both AMY and BRYCE. For all purposes of this Trust, it shall be assumed that AMY and BRYCE have both predeceased the Grantor. Neither AMY nor BRYCE shall in any way be a beneficiary of or receive any portion of the Trust or the Grantor’s estate.
(Emphasis in original).
At the same time, Andrea executed a second pour-over will devising all remaining
assets to the revocable trust and adding a parallel clause disinheriting Amy and Bryce and
providing that they “shall be deemed to have predeceased me.” As with the 2016 pour-
over will, the August 2018 will devises and bequeaths Andrea’s residuary estate to the
revocable trust to be held and distributed according to its terms. Effectively cut out of
Andrea’s estate and affairs, Amy initiated the current litigation.
6 The Guardianship Litigation and Amended Pleadings
On October 2, 2020, Amy filed her initial petition for guardianship over the person
and property of Andrea in the Circuit Court for Montgomery County. The Petition included
three counts seeking: (I) assumption of jurisdiction by the circuit court over the Virginia
Trust, (II) guardianship over the person and property of Andrea, and (III) court-ordered
visitation with Andrea.
Thereafter, while the guardianship proceeding was pending, on January 19, 2021,
Amy filed an amended petition (the “First Amended Petition”). The First Amended
Petition added a fourth count alleging that Lisa unduly influenced Andrea in the making of
her estate planning documents. Amy requested that those documents “be declared null and
void and/or revoked as a result of undue influence,” and she sought damages in the amount
of $75,000 without explanation. On February 2, 2021, Andrea filed a timely motion to
strike the First Amended Petition in its entirety and dismiss the underlying claims.
On February 25, 2021, Amy filed another amended petition (the “Second Amended
Petition”) adding Lisa, Emily, Julia, and William Murray—the Arlington County
Commissioner of Accounts charged with overseeing administration of the Virginia Trust—
as defendants and “real parties in interest.” In her Second Amended Petition, Amy
included the following allegations in setting out her undue influence challenge:
40. That the benefactor, Andrea S. Jacobson, and the beneficiary, Lisa Allyn Jacobson are involved and have been involved in a relationship of confidence and trust. Andrea S. Jacobson and Lisa Allyn Jacobson are sisters. And, Lisa Allyn Jacobson is a confidante of Andrea S. Jacobson and is in complete control of Andrea S. Jacobson’s medical treatment, health and wealth. That Andrea S. Jacobson at all times herein reposed trust and confiden[ce] in Lisa Lipps Jacobson.
7 41. the estate documents of Andrea S. Jacobson contain substantial benefits to Lisa Allyn Jacobson- all of Andrea S. Jacobson’s estate is controlled and bequeathed to Lisa Allyn Jacobson. In effect an inter-vivos transfer of all Andrea S. Jacobson wealth property, and health.
42. that Lisa Allyn Jacobson caused and/or assisted in effecting the execution of Andrea S. Jacobson’s estate planning documents, caused, coerced, exerted undue influence, abused and violated her confidential relationship with Andrea S. Jacobson
43. that Lisa Allyn Jacobson has had and continues to have multiple opportunities to exert influence on Andrea S. Jacobson and has in fact coerced and exerted influence on Andrea S. Jacobson to the financial benefit of Lisa Lipps Jacobson, breached her confidential relationship
44. that the estate planning documents contain unnatural dispositions in that Andrea S. Jacobson specifically disinherited her only daughter/ child and only grandson to the benefit of Lisa Allyn Jacobson and the daughters of Lisa Allyn Jacobson,
45. that the estate planning documents changed, significantly, the prior estate planning documents
46. that Andrea S. Jacobson was/is highly susceptible to the undue influence of Lisa Allyn Jacobson and because of said undue influence executed the aforesaid documents disinheriting her child and grandchild and transferring all her wealth and health to her sister and sister’s daughters; that Andrea S. Jacobson has now been diagnosed as having dementia, which causes impairment in cognitive memory and judgment. Her condition has progressed and she is presently deemed incapable of managing her financial and medical affairs. Dr. Nikar’s letter states that he recommends her POA take charge of decisions and actions.
In response, on March 10, 2021, Andrea again filed a timely motion to strike Amy’s
Second Amended Petition in its entirety arguing, among other things, that the new
defendants were not properly served, that the circuit court lacked jurisdiction over both the
Virginia Trust and the Commissioner of Accounts, and that Amy’s claims were meritless
aside from the fact that she lacked standing to bring them.
8 The Show Cause Proceedings and Dismissal of Counts II and III
Following the initial petition, on November 2, 2020, the circuit court issued an order
to show cause why Andrea should not be examined to determine whether Andrea was in
need of a guardian under Maryland Rule 10-202(a)(3)(A).4 During the show cause hearing,
the court heard testimony from Amy, Lisa, and Andrea’s team of physicians, financial
professionals, and caregivers over two days—March 11 and April 16, 2021.5 At the
conclusion of the hearing, the court ruled from the bench and discharged the show cause
order after finding that Andrea was well cared-for and unequivocally not at risk within the
meaning of Rule 10-202.
On June 30, 2021, the circuit court entered judgment in favor of Andrea on Counts
II (guardianship) and III (visitation) of Amy’s Second Amended Petition. With respect to
4 When seeking a guardianship of an alleged disabled person, the petitioner ordinarily must file with the petition signed and verified certificates by at least two physicians who have examined the ward. Md. Rule 10-202(a)(1). When such certificates are not provided because the petitioner has been unable to access or examine the ward, then a show cause proceeding is held. Maryland Rule 10-202(a)(3)(A) provides as follows:
Refusal to Permit Examination. If the petition is not accompanied by the required certificate and the petition alleges that the disabled person is residing with or under the control of a person who has refused to permit examination or evaluation . . . and that the disabled person may be at risk unless a guardian is appointed, the court shall defer issuance of a show cause order. The court shall instead issue an order requiring that the person who has refused to permit the disabled person to be examined or evaluated appear personally on a date specified in the order and show cause why the disabled person should not be examined or evaluated. The order shall be personally served on that person and on the disabled person. 5 Pursuant to Maryland Code (1974, 2017 Repl. Vol.), Estates & Trusts Article (“ET”), § 13-705(e)(1), Andrea waived her right to be present at the hearings.
9 Count II, the court found that Amy did not “adduce any proof under Rule 10-202(a)(3) that
Andrea S. Jacobson may be at risk unless a guardian is appointed” and thus denied her
petition for appointment as Andrea’s guardian.6 Regarding Count III, the court denied
Amy’s request for visitation, explaining that it “had no power to order visitation between
adults with the narrow exception of certain limited cases, not applicable here, when a
guardian has been appointed.” 7
Court Dismisses all Counts After Hearing on Motion to Reconsider and Remaining Issues
On July 9, 2021, Amy filed a motion to reconsider the June 30 order claiming, for
the first time, that several of Andrea’s estate planning documents included signatures
forged by Lisa. After the parties jointly moved for a continuance, the circuit court deferred
a ruling on the motion to reconsider and set a hearing date for October 27, 2021, to address
the remaining issues raised in Counts I and IV of the Second Amended Petition. At the
hearing, the circuit court heard argument from counsel, dismissed both counts, and
dismissed as moot the motion to reconsider after Amy’s counsel withdrew it at the hearing.
As to Count I concerning Amy’s request to assume jurisdiction over the Virginia
Trust, the court found that “I don’t believe that under any reasonable standard with respect
to when this court should assume jurisdiction over an estate like this that the standard has
6 The circuit court mistakenly referred to Count II as Count I, which instead dealt with the Virginia Trust. 7 The circuit court mistakenly referred to Count III as Count II, which instead dealt with the guardianship over Andrea.
10 been met.” With respect to Count IV, the court granted Andrea’s motion to strike and
dismissed Amy’s undue influence claim finding that: (1) the claim was unsupported by
sufficient factual allegations, and (2) Amy lacked standing to bring such a claim while
Andrea remained alive. The court explained its ruling, in relevant part, as follows:
All right, so I think the last issue before me relates to Count 4 which is the claim of undue influence and, with respect to this, I am satisfied that there is no standing on the part of Ms. Silverstone to challenge, at this point, the revocable trust of Andrea, or the documents related to her present condition.
Likewise, that with respect to the estate issues, there’s no basis for asserting a challenge to the will at this time. There’s a specific process under Maryland law for doing that at the time following the death and the opening of an estate under the [Estates] and Trust Article [5-207]. It has a specific time for filing a petition to caveat a will so the action at this time would be premature.
But even if I got by the standing issue, I don’t find, based upon the allegations that are, while Mr. Paugh is correct with respect to notice pleading, it does require some facts to support conclusory and here, or to support the conclusions, and here, there are conclusory allegations, but there are no facts alleged, in my view, sufficient to support a claim. So I will go ahead and grant the motion to strike the Second Amended Petition as related to count four, and I think that’s everything.
On November 2, 2021, the court then entered a corresponding order dismissing
Counts I and IV and discharging the remaining motions pending before the court.
Post-Dismissal Proceedings
The very next day, on November 3, 2021, Amy filed a motion to reconsider the
November 2 order and for leave to amend her Second Amended Petition. Almost bereft of
any specific argument, that motion contained a brief prayer for leave to amend and recited
lengthy quotations from two Maryland cases dealing with undue influence; one in the
context of an inter vivos transfer that was challenged post-mortem, and the other in the
11 context of a will contest. Without waiting for leave to amend, Amy filed a Third Amended
Petition on the same day that included a fifth count for declaratory relief based on undue
influence and the forgery allegations initially included in Amy’s July 9 motion to
reconsider.8 According to Amy, she retained a document examiner who determined that
Andrea’s 2015 and 2019 powers of attorney as well as the August 2018 amended trust
agreement were all forged. On November 5, 2021, Amy re-filed her Third Amended
Petition with additional factual allegations related to Count IV (undue influence).
Andrea filed a timely motion to strike Amy’s Third Amended Petition, followed by
an opposition to Amy’s motion to reconsider along with a motion for sanctions against
Amy for filing the November 3 motion to reconsider without substantial justification. On
December 13, 2021, the circuit court denied the November 3 motion to reconsider and
granted Andrea’s motion to strike the Third Amended Petition in its entirety. Then, on
December 17, 2021, the court denied Andrea’s motion for sanctions.
Amy filed a timely notice of appeal from the November 2 and December 13 orders
on January 6, 2022.9 Andrea and Lisa filed a timely cross appeal from the circuit court’s
December 17 order on January 7, 2022.
8 Perplexingly, Amy’s Third Amended Petition included and restated nearly verbatim Counts II-III of her initial petition. At the October 27 hearing, Amy’s counsel withdrew her motion for reconsideration of the dismissal of Counts II and III, describing them as “moot.” 9 The appeal from the November 2 order is timely because the November 3 motion to reconsider was filed within 10 days of the November 2 order and thus tolled the time to file a notice of appeal while that motion was considered. Md. Rule 8-202(c); Johnson v.
(Continued)
12 DISCUSSION
I.
Failure to State a Claim and Lack of Standing to Bring Second Amended Complaint
Standard of Review
The decision to grant a motion to dismiss is a legal question, and therefore we review
the decision without deference to the trial court. Grueff v. Vito, 229 Md. App. 353, 376
(2016) (reviewing dismissal of remainder beneficiaries’ challenge to actions of trustee of
irrevocable trust). In doing so, we must assume “the truth of the complaint’s factual
allegations and of any reasonable inferences that can be drawn therefrom.” GPL Enter.,
LLC v. Certain Underwriters at Lloyd’s, 254 Md. App. 638, 649 (2022). Dismissal is only
proper if “the alleged facts and reasonable inferences would fail to afford relief to the
plaintiff.” Id. Nonetheless, bald assertions and conclusory statements by the pleader will
not suffice and the court “need not accept the truth of pure legal conclusions.” Id.
A. Parties’ Contentions
Amy’s opening brief collects a series of quotations from statutes, rules, and cases
untethered to the questions as presented on page four of her brief. The first issue, as
presented in Amy’s brief is: “The Court dismissed Petitioner’s Second Amended
Complaint Pursuant to Rule 2-303 (conclusory statement and no facts) and because
Francis, 239 Md. App. 530, 541 (2018) (“Rule 8-202(c) provides for an exception that tolls the running of [the thirty-day] appeal period while the court considers certain motions, including motions to alter or amend that are filed within ten days of entry of the judgment or order” under Rules 2-534 and 2-535).
13 Petitioner’s Complaint was premature and Petitioner was without standing. Was this ruling
correct?” Although seemingly directed toward the dismissal of her entire four-count
complaint, Amy’s briefing on this claim of error includes no argument or authority
whatsoever relating to Counts I (assumption of jurisdiction over the Virginia Trust), II
(guardianship over Andrea), and III (visitation with Andrea). Under Maryland Rule 8-
504(a)(6), a party is required to present argument on each issue that it intends to raise before
this Court, or we may decline to consider it. Tallant v. State, 254 Md. App. 665, 677 n.9
(2022). Consequently, we consider only Amy’s relatively formless arguments relating to
the dismissal of Count IV.
Amy maintains that she had standing to challenge the validity of Andrea’s will,
powers of attorney, and revocable trust, primarily based upon her interest as Andrea’s
daughter and presumptive heir. By merely quoting Rule 2-303(b) without further
explanation, Amy appears to argue that the circuit court erred in dismissing Count IV
because she complied with the minimal pleading requirements of Maryland Rule 2-303.10
Andrea and Lisa respond that Amy’s petition was properly dismissed. First, they
argue that Amy had no standing to challenge the validity of Andrea’s powers of attorney
in the absence of any specific abuse of authority by Lisa in her capacity as Andrea’s agent.
10 Amy’s opening brief also includes an entirely unexplained citation to the three- year statute of limitations as well as a block quote addressing the doctrines of laches, seemingly for the proposition that she was required to bring her undue influence challenge because the doctrine of laches and the statute of limitations would have barred her claim had she waited until her mother’s death to act. Because this argument was not presented to the circuit court below, it is waived, although this Court retains the discretion to consider it on appeal to the extent that it concerns jurisdiction of the trial court over the subject matter. Md. Rule 8-131(a). In this case, we decline to do so.
14 Second, Andrea and Lisa aver that Amy lacked standing to contest the validity of Andrea’s
revocable trust because Amy was not a beneficiary of the trust and thus had no interest to
assert. Third, they point out that while Amy would have standing to caveat Andrea’s will
upon her death, she did not possess the ability to bring an undue influence challenge until
that time. Finally, they contend that even if Amy had standing, Count IV was properly
dismissed because Amy relied entirely on conclusory allegations and failed to plead
sufficient facts to support her claim.
B. Standing to Contest a Will or Revocable Trust Pre-Mortem
Standing, in its most conventional sense, refers primarily to who may “invoke the
judicial process in a particular instance.” State Ctr., LLC v. Lexington Charles P’ship, 438
Md. 451, 502 (2014) (internal quotation marks omitted). To have standing, a plaintiff must
have a legally protected interest, whether provided by statute or arising out of contract, tort,
or property ownership. Id. at 500-02. The doctrine of standing is thus designed to ensure
that a plaintiff “has a sufficiently cognizable stake in the outcome.” Kendall v. Howard
Cnty., 431 Md. 590, 603 (2013). Under Maryland’s “cause of action” approach to standing,
a plaintiff lacks standing unless “governing law confers on the plaintiff a right to bring the
claim to the courts.” State Ctr., 438 Md. at 501; see also id. at 502 (“the appellate courts
in Maryland have adopted the ‘cause of action’ approach, which groups the traditionally
distinct concepts of standing and cause of action into a single analytical construct[.]”).
At the outset of our analysis of this case, we observe that Amy fails to explain
exactly what cause of action she sought to invoke by her allegations of undue influence.
That may be because there was no obvious choice considering Amy’s fundamental
15 justiciability problems. For example, Amy most certainly could not caveat Andrea’s will
while Andrea remained alive. Maryland Code, (1974, 2017 Repl. Vol.), Estates & Trusts
Article (“ET”), section 5-207(a)(1) expressly provides that a caveat petition may be filed
“at any time before the expiration of 6 months following the first appointment of a
personal representative under a will.” ET § 5-207(a)(1) (emphasis added). Moreover,
section 5-207(b)(1) provides that the filing of a petition to caveat “has the effect of a request
for judicial probate.” ET § 5-207(b)(1). Both the appointment of a personal representative
and the opening of judicial probate can only occur after the testator has actually died. See,
e.g., ET § 5-201(b)(1) (providing that a petition for probate must include the decedent’s
date of death). Although not explicit, the structure of section 5-207 and its place within
the Title 5 of the Estates & Trusts Article—which lays out the details of probate
administration—contemplate that a petition to caveat can only be filed after death. See
Witte v. Azarian, 369 Md. 518, 525-26 (2002) (providing that courts may look to other
indicia of legislative intent such as the structure of the statute and its relation to other laws).
Although we have not yet had occasion to address the exact issue of pre-mortem
standing to challenge the validity of a will or revocable trust, our sister courts have done
so on several occasions. Indeed, several of our sister courts have ably explained that pre-
mortem actions seeking to set aside a will are not justiciable for two overriding reasons.
First, because a will is testamentary in nature, “it operates only upon and by reason
of the maker’s death” and “[u]ntil then it is ambulatory.” In re Radda, 955 N.W.2d 203,
211-13 (Iowa 2021). Accordingly, as the Iowa Supreme Court recently explained,
“[p]redeath challenges to wills may be a waste of time—the testator might replace the will
16 at issue with a new one, die without property, or the challenger might die before the
testator.” Id. at 213. Thus, as a matter of ripeness, when the testator is “currently alive,
issues involving the validity of [the testators’] Last Will and Testament are likely not even
ripe for adjudication by any court” because “it is premature to interpret or invalidate a will
that has not yet been admitted to probate because the testator is still alive.” Hodge ex rel.
Skiff v. Hodge, 78 F. Supp. 2d 29, 33 (N.D.N.Y. 1999) (emphasis supplied in original).
Second, because a will creates no present interest in the testator’s property, “the
absence of parties in interest, which results from the rule that a living person has neither
heirs nor legatees, render impossible the assumption that a court has inherent power to
determine the validity of a will prior to the death of the maker.” Cowan v. Cowan, 254
S.W.2d 862, 863-65 (Tex. Civ. App. 1952) (quoting 57 Am. Jur. § 523)); accord Alexander
v. Walden, 337 S.E.2d 241, 242 (S.C. Ct. App. 1985). This is a venerable principle, one
which our Court of Appeals similarly recognized—a long time ago—in holding that the
presumptive heirs of a grantor could not contest an inter vivos transfer of property merely
based on an expectancy. Sellman v. Sellman, 63 Md. 520, 522-24 (1885). Indeed, in
Sellman, the Court observed that “the children and grandchildren of the living ancestor
could not claim a right to maintain a suit in respect to the property of that ancestor while
their interest in such property was merely an expectancy, depending upon a future
inheritance that, by possibility, may never occur.” Id. at 522. Rather, “it is only after the
death of the ancestor that his children are entitled to the status of very heirs, which will
enable them to assert a right to property derived through him by inheritance.” Id. at 525
17 (emphasis in original). Here, Amy occupies the same position: she possesses no property
interest in Andrea’s assets other than the remote expectancy of a presumptive intestate heir.
These principles—while adduced primarily in the context of wills—apply with
equal force to revocable trusts. At least one court has found that the disinherited
beneficiaries of a revocable trust lacked standing to challenge trust amendments executed
by a living settlor. Linthicum v. Rudi, 148 P.3d 746, 747-49 (Nev. 2006). In Linthicum,
the Nevada Supreme Court held that the dismissal of the plaintiff’s undue influence
challenge to an amendment removing them as remainder beneficiaries of the trust was
proper because the settlor was still alive. Id. at 747-49. As the court noted, remainder
beneficiaries under a revocable trust “have only a contingent interest, at most, while the
settlor is still alive. That interest does not vest until the settlor’s death.” Id. at 749. That
logic aligns with our precedent establishing revocable trusts as primarily testamentary
instruments that convey only a contingent interest that can be revoked at any time. Grueff
v. Vito, 229 Md. App. 353, 380 (2016) (“A revocable trust is a trust that the person who
creates it . . . can revoke during the person’s lifetime. The beneficiaries’ interest in the trust
is contingent only, and the settlor can eliminate that interest at any time.”) (quoting Estate
of Giraldin, 290 P.3d 199, 201 (Ca. 2012)); Upman v. Clarke, 359 Md. 32, 45-48 (2000)
(finding that a revocable trust was “predominantly testamentary . . . because [Settlor]
reserved the right to revoke the trust, she retained the power, with the stroke of a pen, to
undo the transfer and recover full legal title to the property, at any time and for any
reason.”).
18 We find the foregoing cases persuasive and conclude that Amy cannot bring a pre-
mortem contest to a will or revocable trust. Amy lacks standing because she has no
property interest in her mother’s trust assets or potential probate estate other than a remote
claim as a presumptive intestate heir. Moreover, Amy’s claims may well be unripe because
Andrea could, to the extent she is sufficiently lucid, execute another will or trust
amendment or simply run out of assets, thus making this matter “future, contingent and
uncertain.” State v. G & C Gulf, Inc., 442 Md. 716, 721 (2015) (quoting State Ctr., 438
Md. at 591). When Andrea passes, Amy will have statutory standing to contest the validity
of Andrea’s revocable trust under ET § 14.5-605 and to caveat Andrea’s will under ET §
5-207. Until that time, however, Amy lacks standing, and the circuit court correctly
dismissed her undue influence challenge to Andrea’s wills and revocable trust agreements
on those grounds.
C. The Powers of Attorney
Amy points to our opinion in Ibru v. Ibru, in support of her contention that she had
standing to challenge the validity of Andrea’s powers of attorney, as amended. 239 Md.
App. 17 (2018). In Ibru, we addressed the meaning of ET § 17-103, which provides
statutory standing to a broad class of persons to prevent abuses of power by agents
appointed under a power of attorney. ET § 17-103; Ibru, 239 Md. App. at 42-44. ET §
17-103(a) provides, in relevant part, as follows:
(a) The following persons may petition a court to construe a power of attorney or review the agent’s conduct, and grant appropriate relief: *** (4) The principal’s spouse, parent, or descendant;
19 (5) An individual who would qualify as a presumptive heir of the principal;
(Emphasis added).
In Ibru, we concluded that ET § 17-103(a)(4) conferred standing on the principal’s
son, Peter, based on a common-sense interpretation of the statute. There, the principal,
Chief Ibru, traveled to the United States from Nigeria and executed a durable power of
attorney and general power of attorney appointing his daughter, Janet, as his agent. Ibru,
239 Md. App. at 24. After Chief Ibru’s health began to deteriorate, Peter filed an action to
challenge specific actions taken by Janet pursuant to her authority as Chief Ibru’s agent.
Id. at 26. Peter also sought to declare the powers of attorney null and void on the grounds
of forgery, fraud, and duress. Id. After reviewing the plain meaning of ET § 17-103, we
concluded that because “Peter is a descendant of Chief Ibru, . . . Peter has standing
under ET [§ 17-103(a)(4)] to petition the court to review Janet’s actions as an agent and
construe the validity of the Powers of Attorney.” Id. at 46.
Amy’s broad reading of the holding of Ibru is divorced from the facts and analysis
in that case.11 The circumstances presented in Ibru are relevantly distinguishable. It bears
repeating that to have standing a plaintiff must present a cause of action and have a legally
protected interest, whether provided by statute or arising out of contract, tort, or property
ownership. State Ctr., 438 Md. at 499-502. As Andrea and Lisa correctly point out, in
Ibru, we confronted a situation where the attorney-in-fact had allegedly diverted substantial
11 ET § 17-103 does not apply to Andrea’s health care power of attorney pursuant to § 17-109, which provides that certain documents are outside the scope of the title, including advanced health directives. ET § 17-109(b)(2).
20 sums from the principal’s accounts. Ibru, 239 Md. App. at 28-30. Here, by contrast, there
has been no allegation that Lisa engaged in any improper behavior whatsoever in her role
as Andrea’s agent. Considering the legislative intent behind § 17-103, which we examined
in Ibru, we conclude that a freestanding challenge to the validity of a power of attorney in
the absence of any evidence of misuse or abuse of authority is not contemplated by the
statute.
As we explained in Ibru, ET § 17-103 was modeled verbatim on § 116 of the
Uniform Power of Attorney Act (“UPOAA”). Ibru, 239 Md. App. at 43-45. The drafters’
comment to UPOAA § 116 explains that the “primary purpose of this section is to protect
vulnerable or incapacitated principals against financial abuse” while preserving “the self-
determination rights of principals.” Ibru, 239 Md. App. at 44; UPOAA § 116 cmt.
background (2006). With respect to the latter objective, UPOAA § 116 requires courts to
dismiss a petition upon the principal’s motion “unless the court finds that the principal
lacks the capacity to revoke the agent’s authority.” UPOAA § 116(b). Further, the drafters
emphasized that UPOAA § 116 acts as “a check-and-balance on § 114(h),” which
comparatively provides that only a narrow class of persons may request an accounting from
an agent-in-fact of transactions conducted on the principal’s behalf. UPOAA § 116 cmt.
background; ET § 17-102(a) (adopting verbatim UPOAA § 114(h)). As a result, UPOAA
§ 116 “provides what, in many circumstances, may be the only means to detect and stop
agent abuse.” UPOAA § 116 cmt. background (emphasis added).
Extrapolating from these stated goals—which we have previously attributed in Ibru
to ET § 17-103 as the verbatim corollary to UPOAA § 116—we perceive that the provision
21 was intended to address a very specific situation: an incapacitated principal standing at the
mercy of a rogue attorney-in-fact who has actually abused their fiduciary position. If the
overarching purpose of UPOAA § 116 is to serve as “a means to detect and stop agent
abuse,” then a petition must be filed in the context of a dispute concerning abuses of power
by the attorney-in-fact while the principal is incapacitated. After all, one cannot detect or
stop agent abuse when it has not yet occurred.
Considering the foregoing precepts, we hold that Amy could qualify as a proper
party to bring a claim under ET § 17-103(a)(4) insofar as she is Andrea’s descendant, but
because her complaint fails to allege any misuse or abuse of power by Lisa, Amy is “not
entitled to invoke the judicial process in [this] particular instance” under ET § 17-103(a)(4).
Bank of N.Y. Mellon v. Georg, 456 Md. 616, 657 (2017) (“‘[o]ne requirement of
justiciability is that the plaintiff have standing in the sense that the person is entitled to
invoke the judicial process in a particular instance.’”) (quoting Adams v. Manown, 328 Md.
463, 480 (1992)); see also State Ctr., 438 Md. at 502 (“the appellate courts in Maryland
have adopted the ‘cause of action’ approach, which groups the traditionally distinct
concepts of standing and cause of action into a single analytical construct[.]”).
Amy does not argue, nor does the record suggest, that Lisa committed any abuse of
her powers as Andrea’s agent-in-fact pursuant to Andrea’s powers of attorney. As a result,
the circuit court did not err in dismissing Amy’s freestanding undue influence challenge to
Andrea’s powers of attorney due to lack of standing because Amy did not plead facts
sufficient to invoke ET § 17-103 in this particular instance.
22 D. Failure to State a Claim
Amy’s failure to state a cause of action and her lack of standing are fundamental
and overlapping defects in this case. We affirm the court’s determination that Amy failed
to state a cognizable claim for relief based on her bald allegations of undue influence that
fell short of invoking a recognizable cause of action.
Undue influence “amounts to physical or moral coercion that forces a [person] to
follow another’s judgment instead of his own.” Zook v. Pesce, 438 Md. 232, 248 (2014).
In the context of a will contest, the Court of Appeals has identified seven factors to examine
in determining the existence of undue influence upon a testator: (1) the benefactor and
beneficiary are involved in a relationship of confidence and trust; (2) the will contains
substantial benefit to the beneficiary; (3) the beneficiary caused or assisted in effecting
execution of will; (4) there was an opportunity to exert influence; (5) the will contains an
unnatural disposition; (6) the bequests constitute a change from a former will; and (7) the
testator was highly susceptible to the undue influence. Moore v. Smith, 321 Md. 347, 354
(1990) (citations omitted). The plaintiff “need not prove the presence of all seven of these
factors, but the first and seventh factors (relationship of confidence and trust, and high
susceptibility to undue influence) do appear to be necessary conditions for a finding of
undue influence.” Green v. McClintock, 218 Md. App. 336, 369 (2014), cert denied, 440
Md. 462 (2014) (cleaned up).
The plaintiff’s quantum of proof also varies dramatically depending upon the nature
of the challenged transaction. See Upman v. Clarke, 359 Md. 32, 42-44 (2000). If the
issue concerns an inter vivos gift, the burden of proof shifts to the defendant upon a
23 showing that the defendant and the donor were in a relationship of confidence and trust.
Id. at 42. Accordingly, once a confidential relationship is established, the plaintiff need
not even show the actual exercise of undue influence. Id. Rather, the defendant has the
burden of showing that “the transfer of the property was the deliberate and voluntary act
of the grantor and that the transaction was fair, proper and reasonable under the
circumstances.” Id. at 42-43 (quoting Sanders v. Sanders, 261 Md. 268, 276-77
(1971)). As a result, when the donee in a confidential relationship “exerts any influence
on [the donor] to obtain an inter vivos transfer of the person’s property, for less than full
value, that influence is regarded, at least presumptively, as undue and requires an
explanation.” Id. at 44 (emphasis in original).
By comparison, for a testamentary gift the plaintiff maintains a heavy burden of
proof to set aside a will or revocable trust. Indeed, the Court of Appeals has observed that:
undue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed. The proof must be satisfactory that the will was obtained by this coercion ... or by importunities which could not be resisted, so that the motive for the execution was tantamount to force or fear. Mere suspicion that a will has been procured by undue influence, or that a person had the “power unduly to overbear the will of the testator” is not enough. It must appear that the power was actually exercised, and that its exercise produced the will.
Upman, 359 Md. at 43 (quoting Koppal v. Soules, 189 Md. 346, 351 (1947)). Ultimately,
however, the test for undue influence in setting aside a will maintains some flexibility
because “the quantum of proof necessary to establish undue influence varies according to
the susceptibility of the testator.” Green, 218 Md. App. at 368 (quoting Moore v. Smith,
321 Md. 347, 360 (1990)).
24 With these principles in mind we return to the present case and quickly dispose of
Amy’s claim that the circuit court erred in dismissing her allegations of undue influence
with respect to Andrea’s testamentary documents. Amy’s bald allegations fail to state a
claim even under a loose application of the Moore factors—mostly because her claim is
not ripe given that Andrea is still alive and this is not a will contest. As we said above,
once Andrea passes away, Amy will have standing to challenge the testamentary
documents, assuming she is able to state a claim.12
Amy’s arguments regarding the powers of attorney fall equally wide of the law for
several reasons. First, we do not agree with Amy’s contention that the powers of attorney
are inter vivos gifts. It is indisputable that a power of attorney is an inter vivos instrument,
but it is a stretch, at the very least, to construe it as an inter vivos gift. A power of attorney,
at its core, is a contract of agency which creates a fiduciary relationship. King v. Bankerd,
303 Md. 98, 105 (1985). It does not effectuate any gratuitous transfer of any property,
though the ability to do so on the principal’s behalf can be part of the agent’s authority
when so provided.
Second, Amy structured her Second Amended Petition and arguments on appeal to
set aside the powers of attorney around the Moore framework, but the Moore seven-factor
12 The circuit court’s dismissal in this case does not bar Amy from bringing a subsequent action once Andrea has passed away. We note that the circuit court did not specify in its November 2, 2021, order that Amy’s undue influence challenge to Andrea’s wills and revocable trust agreements was dismissed with prejudice. Moreover, as the Court of Appeals has stated, a dismissal “based merely on formal or technical defects and raising only a question of pleading or want of jurisdiction” is not considered a judgment on the merits for purposes of res judicata. Cassidy v. Bd. Educ. Prince George’s Cnty., 316 Md. 50, 58 (1989) (quoting Moodhe v. Schenker, 176 Md. 259, 267 (1939)).
25 test has, at best, wooden application as applied to a power of attorney. Amy makes no
effort to address this problem and simply makes the incorrect contention that there was an
inter vivos gift in this case that shifted the burden of proof to Lisa. That is indisputably
incorrect. Even if we apply the ill-fitting Moore framework, Amy’s Second Amended
Petition falls short under the Moore factors. For example, with respect to the confidential
relationship factor, Amy simply stated that “the benefactor, Andrea S. Jacobson, and the
beneficiary, Lisa Allyn Jacobson are involved and have been involved in a relationship of
confidence and trust” because they were sisters and Lisa was appointed as Andrea’s agent-
in-fact. Those allegations were insufficient considering that (1) the premise that Andrea
and Lisa “are involved and have been involved in a relationship of confidence and trust”
simply stated a legal conclusion; (2) the fact that Andrea and Lisa are sisters does not
demonstrate the existence of a confidential relationship because familial ties standing alone
do not suffice, see Upman, 359 Md. at 42; and (3) Amy could not bootstrap her way to a
confidential relationship by pointing to a fiduciary association created by the very
document that she is challenging. With respect to the remaining factors, the deficiencies
in Amy’s Second Amended Petition turn on the fact that the allegations, if relevant, were
entirely conclusory.
In sum, we hold that the circuit court did not err in dismissing Count IV of Amy’s
Second Amended Petition for failure to state a claim upon which relief can be granted.
Amy relied entirely on conclusory allegations and failed to articulate a recognizable cause
of action. As a result, because those legal conclusions and unsupported bald assertions
were not sufficient to state a claim, dismissal was proper.
26 II.
Motion for Reconsideration
Although Amy again declines to elaborate, the thrust of her argument appears to be
that the circuit court abused its discretion in denying her motion to reconsider because it
proceeded upon an error of law.
Andrea and Lisa counter that the circuit court properly denied Amy’s motion for
reconsideration because Amy failed to identify any legal error or specify any grounds for
reconsideration. Even if that were not the case, Andrea and Lisa contend that the circuit
court could not have abused its discretion in denying the motion because Amy lacked
standing and there was no legal error to correct.
B. The Motion to Reconsider Was Properly Denied
Under Md. Rule 2-534, a party may file a motion to reconsider within ten days after
the entry of judgment. Md. Rule 2-534. We review a circuit court’s decision to deny a
motion to reconsider for abuse of discretion. Wilson-X v. Dep’t Hum. Res., 403 Md. 667,
674-75 (2008). An abuse of discretion occurs when “no reasonable person would take the
view adopted by the [circuit] court,” or “when the court acts without reference to any
guiding rules or principles.” Id. at 677 (cleaned up). However, a “court’s discretion is
always tempered by the requirement that the court correctly apply the law applicable to the
case.” Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015) (quoting Arrington v. State,
411 Md. 524, 552 (2009)). Indeed, the Court of Appeals has emphasized that “an error in
applying the law can constitute an abuse of discretion, even in the context of a motion for
27 reconsideration made pursuant to Maryland Rule 2-534.” Morton v. Schlotzhauer, 449 Md.
217, 232 (2016). Thus, if a trial court “fails to rectify a judgment based on a
misunderstanding of the law applicable to the case or the procedural posture of the case,
especially when that error is brought to its attention in a timely manner, [it] abuses its
discretion.” Id.
We conclude that, even under more searching review, the circuit court acted
properly in denying Amy’s motion for reconsideration. At a minimum, Amy was required
to bring to the circuit court’s attention the particular legal errors that the court was duty
bound to rectify. For example, in Morton, the trial court abused its discretion in denying
the plaintiff’s motion to reconsider when she specifically brought to the court’s attention
that she had gained standing due to the re-vesting of her claim. Morton, 449 Md. at 234.
Similarly, in Williams v. Housing Authority of Baltimore City, the trial court abused its
discretion in denying a motion to reconsider after the court was “reliably informed” that its
ruling was based on a clear error of law and that another party had not received proper
notice of a hearing. 361 Md. 143, 153 (2000); see also Garliss v. Key Fed. Sav. Bank, 97
Md. App. 96, 105 (1993) (finding abuse of discretion in denying motion to reconsider after
court was informed that movant was entitled to a credit against judgment). Here, Amy
simply did not carry her burden of demonstrating to the circuit court that it had misapplied
the law.
In her motion to reconsider, Amy quoted at length from two undue influence cases,
Moore v. Smith, 321 Md. 347 (1990), and Figgins v. Cochrane, 403 Md. 392 (2008),
without explaining how those cases connected to the facts at hand or established that the
28 court erred in dismissing her Second Amended Petition. Moreover, even if the circuit court
were able to extrapolate her argument, the cases cited by Amy were largely inapposite and
failed to address her standing to challenge Andrea’s estate planning documents. In Moore,
for example, the Court of Appeals established the seven-factor test for undue influence in
will contests and observed that because undue influence can often be difficult to detect, it
may be proven by circumstantial evidence. Moore, 321 Md. at 354. Amy’s reliance on
Moore was unavailing for many reasons, including that her Petition did not concern a post-
mortem dispute, and, unlike in Moore, her Petition was not dismissed due to a lack of direct
evidence, but because of a wholesale failure of proof and reliance on conclusory
allegations.
Likewise, in Figgins, the Court of Appeals found that the existence of a confidential
relationship in the context of an inter vivos transfer of property shifted the burden of proof
to the agent to demonstrate the fairness of the transaction. Figgins, 403 Md. at 414. As
Andrea and Lisa ably point out, there was no inter vivos gift in this case. Amy’s reliance
on Figgins was thus misplaced, especially considering that she would have retained the
burden of proof on her undue influence challenge to Andrea’s will and revocable trust even
if she could prove a confidential relationship between Andrea and Lisa. See Upman, 359
Md. at 43 (holding that the burden of proof on undue influence remains with caveator of a
will); Zook v. Pesce, 438 Md. 232, 247-48, 250 (2014) (concluding that the burden of proof
on an undue influence challenge to decedent’s living trust remains with the plaintiff even
where a confidential relationship exists).
29 At bottom, the circuit court did not abuse its discretion in denying Amy’s motion to
reconsider its dismissal of her Second Amended Petition. Amy was required to timely
bring some legal error to the court’s attention in her motion to reconsider. She did not.
Instead, Amy simply recited Moore and Figgins without any elaboration as to how those
holdings established an error that the circuit court was required to correct. In fact, Amy
failed to even address standing—the primary rationale for dismissal—in any appreciable
way. As a result, the circuit court did not abuse its discretion in denying her motion to
reconsider because Amy’s deficient motion did not bring the court’s attention to any errors
that it was duty bound to rectify.
III.
Post Judgment Motions
Amy contends that the circuit court abused its discretion in denying her leave to
amend because Rule 2-341(A) permits amendments without leave of court by the date set
forth in a scheduling order or at least 30 days before trial. Amy avers that her Third
Amended Petition thus should have been permitted because “there is no scheduling order”
and “the Third Amended Petition added new facts in Paragraph 47 through 65 and a new
Count V[.]” Finally, Amy posits that the new count for declaratory relief justified leave to
amend because it set out new evidence “detailing the non-genuine signatures” on Andrea’s
estate planning documents.
In response, Andrea and Lisa point out that the Second Amended Petition had
already been dismissed in its entirety before Amy filed the Third Amended Petition. They
30 point out that although leave to amend is freely granted before dismissal on the merits, that
is not the case after judgment. Further, Andrea and Lisa posit that the amendment would
have been futile because the declaratory relief requested by Amy was not ripe for review
and her claims were irreparably flawed.
B. Leave to Amend Was Properly Denied
The decision to grant leave to amend pleadings is committed to the sound discretion
of the circuit court. Bord v. Balt. Cnty., 220 Md. App. 529, 565 (2014). Under the
Maryland Rules, an amended pleading may be filed either with or without leave of court
depending upon the procedural posture of a case. Pursuant to Md. Rule 2-341(a), a party
may file an amended pleading without leave of court “by the date set forth in a scheduling
order or, if there is no scheduling order, no later than 30 days before a scheduled trial date.”
Md. Rule 2-341(a). Thereafter, any other party to the action may file a motion to strike
“setting forth reasons why the court should not allow the amendment” within 15 days after
service of the amended pleading. Md. Rule 2-341(a). Conversely, under Md. Rule 2-
341(b), a party “may file an amendment to a pleading after the dates set forth in [Rule 2-
341(a)] only with leave of court.” Md. Rule 2-341(b). Rule 2-341(b), in turn, works in
conjunction with Md. Rule 2-322(c), which provides that after a claim has been dismissed,
“an amended complaint may be filed only if the court expressly grants leave to amend.”
Md. Rule 2-322(c) (emphasis added).
Nevertheless, when leave is requested, it should ordinarily be freely granted “to
prevent the substantial justice of a cause from being defeated by formal slips or slight
variances.” Prudential Secs., Inc. v. E-Net. Inc., 140 Md. App. 194, 232 (2001) (quoting
31 E.G. Rock, Inc. v. Danly, 98 Md. App. 411, 428 (1993)). Under Md. Rule 2-341(c),
amendments to pleadings “shall be freely allowed when justice so permits.” Md. Rule 2-
341(c). Accordingly, an amendment should be permitted “so long as the operative factual
pattern remains essentially the same, and no new cause of action is stated invoking different
legal principles.” Hartford Acc. & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 109
Md. App. 217, 248 (1996) (quoting Gensler v. Korb Roofers, Inc., 37 Md. App. 538, 543
(1977)). As a result, “leave to amend complaints should be granted freely to serve the ends
of justice” and “it is the rare situation in which a court should not grant leave to amend.”
RRC Northeast, 413 Md. at 673.
Nonetheless, an amendment “should not be allowed if it would result in prejudice
to the opposing party or undue delay, such as where amendment would be futile because
the claim is flawed irreparably.” Id. at 673-74. Prejudice is especially likely to result when
a party attempts to add claims late in the litigation. For example, in E.G. Rock, we found
no abuse of discretion when the trial court denied the defendant leave to amend to set out
a counterclaim after the close of evidence at trial. E.G. Rock, 98 Md. App. at 429.
Similarly, in Mattvidi Assocs. Ltd. P’ship v. NationsBank of Va., N.A., we affirmed the
denial of leave to amend on the day of trial as any such amendment would have prejudiced
the defendant absent “the opportunity for additional discovery” and “necessary additional
discovery would have delayed the trial, and, of course, resulted in much more complicated
litigation.” 100 Md. App. 71, 84-85 (1994).
Especially after a claim has already been resolved, the plaintiff’s ability to amend
thereafter is significantly curtailed. See RRC Northeast, 413 Md. at 674-75. In RRC
32 Northeast, the Court of Appeals found no abuse of discretion when the circuit court denied
the plaintiff leave to amend after the plaintiff failed to identify any terms in the parties’
contract “that, if pled, would have improved the twice-dismissed breach of contract claims
by answering the key question” of which sublease term the defendant had breached. Id. at
674. As a result, because of the plaintiff’s “continued inability to proffer facts that would
improve its complaint,” the circuit court properly denied leave to amend since “any such
further amendment would have been futile and would have resulted in undue delay.” Id.
at 674-75; see also Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 29
(2005) (affirming circuit court’s striking of amended complaint after claims were dismissed
and plaintiff failed to produce evidence that personal jurisdiction existed over the
defendants).
Returning to the case before us, two points are immediately clear. First, Amy’s
contention that she had leave to amend under Rule 2-341(A) because there was no
scheduling order is completely without merit. As Andrea and Lisa correctly observe, Amy
ignores the fact that her claims had been dismissed before she sought leave to amend. Thus,
as provided by Rule 2-322(c), an amended complaint could only have been filed if the court
expressly granted leave to amend. Second, to the extent that Amy sought leave to amend
to reprise her undue influence challenge to Andrea’s estate planning documents, the circuit
court did not abuse its discretion in denying her motion. As in Beyond Systems, such an
amendment would have been futile because Amy still lacked standing to bring those claims
even with her additional allegations of forgery and request for declaratory relief. When
Amy filed her Third Amended Petition, Andrea was still alive and no abuses of Lisa’s
33 authority as Andrea’s agent had come to light. In essence, the status quo had not changed
in any way. Accordingly, we discern no abuse of discretion in the circuit court’s decision
denying leave to amend when Amy’s claims remained non-justiciable, thus rendering any
amendment futile.
C. Propriety of Striking an Amended Pleading Following Dismissal
While an amended complaint can in some circumstances be filed following the
dismissal of a case, the Maryland Rules create a specific procedure for doing so. As
provided by Md. Rule 2-322(c):
If the court orders dismissal, an amended complaint may be filed only if the court expressly grants leave to amend. The amended complaint shall be filed within 30 days after entry of the order or within such other time as the court may fix. If leave to amend is granted and the plaintiff fails to file an amended complaint within the time prescribed, the court, on motion, may enter an order dismissing the action.
In Bacon v. Arey, we clarified that the grant of leave to amend, as clearly
contemplated by Rule 2-322(c), functions as a precondition to filing an amended
complaint. 203 Md. App. 606, 670-71 (2012). In Bacon, while the case was on remand
from this court following the dismissal of the plaintiff’s third amended complaint, the
plaintiff filed, without express leave, a fourth amended complaint. Id. at 670. We found
that the plaintiff was without the power to do so under Rule 2-322(c) and that the circuit
court properly struck the fourth amended complaint as a result. Id. at 670-71. As we
emphasized, the plaintiff “must seek” and presumably be granted “leave to amend before
filing another complaint.” Id. at 671 (emphasis added).
34 We review the circuit court’s grant of a motion to strike for abuse of discretion. Id.
at 667. In the present case, the logic of Bacon easily controls. Amy was required to have
obtained leave before filing her Third Amended Petition. As a result, as in Bacon, the
Third Amended Petition was not filed in compliance with Rule 2-322(c) and the circuit
court did not abuse its discretion in granting Andrea and Lisa’s motion to strike the Third
Amended Petition in its entirety. Nor, as Amy contends, was the circuit court required to
provide a “written declaration of the parties’ rights” in striking a pleading that was not
properly before it. It is true that a declaratory judgment must be rendered when a
“controversy is appropriate for resolution by declaratory judgment.” Harford Mut. Ins. Co.
v. Woodfin Equities Corp., 344 Md. 399, 414 (1997). But that is only the case when the
court is actually addressing the merits of a properly justiciable controversy, which was not
the case here. We hold that the circuit court did not abuse its discretion in striking an
improper pleading without expressing any opinion as to the merits of the pleading,
including Amy’s declaratory claims.
IV.
Denial of the Motion for Sanctions
Andrea and Lisa argue that the circuit court abused its discretion in failing to impose
sanctions on Amy due to her filing of the November 3 motion to reconsider without
substantial justification. They point out that Amy failed to comply with Maryland Rule 2-
311(c) by not stating with particularity the grounds for reconsideration. Instead, they
stress, Amy simply “repeated two long quotations from undue influence cases covering
35 four of the documents’ five pages, without reference to the rule or the standard relevant to
leave to amend or for reconsideration.”
Amy responds, again by rote recitation of authority without elaboration, that the
circuit court did not abuse its discretion. Extrapolating from the passages quoted from
various cases and Rules Commentary in her briefing, Amy appears to argue that (1) she
had a reasonable basis for bringing the undue influence action and (2) the circuit court
could have simply decided not to impose sanctions in its discretion.13
B. The Circuit Court Did Not Abuse Its Discretion
Maryland Rule 1-341 permits an award of attorneys’ fees when an action was
brought by the offending party in bad faith or without substantial justification. Md. Rule
1-341; Christian v. Maternal-Fetal Med. Assocs. Md., LLC, 459 Md. 1, 18 (2018). The
rule primarily functions as a deterrent against abusive litigation and is “a mechanism to
place ‘the wronged party in the same position as if the offending conduct had not
occurred.’” Id. at 19 (quoting Major v. First Va. Bank-Cent. Md., 97 Md. App. 520, 530
(1994)). Because of that narrow purpose, an award of attorneys’ fees under Rule 1-341 is
considered “an ‘extraordinary remedy’ which should be exercised only in rare and
exceptional cases.” Barnes v. Rosenthal Toyota, Inc., 126 Md. App. 97, 105 (1999)
(quoting Black v. Fox Hills N. Cmty. Ass’n, Inc., 90 Md. App. 75, 83 (1992)).
13 Amy also attempts to justify several other actions taken in this case which are outside the scope of this appeal. To be fair, these issues were cited by Andrea and Lisa in their brief as evidence of Amy’s bad faith throughout the litigation. Regardless, because these issues were not raised in the original motion for sanctions and were not passed on by the circuit court, they are not properly before this Court on appeal. Md. Rule 8-131(a); State v. Bell, 334 Md. 178, 188 (1994).
36 To award attorneys’ fees under Rule 1-341, the circuit court must wind its way
through a two-step process. First, the court must make a factual finding as to whether the
challenged action was brought in bad faith or without substantial justification. Christian,
459 Md. at 20-21. We review the court’s factual finding for clear error. Legal Aid Bureau,
Inc. v. Bishop’s Garth Assocs. Ltd. P’ship, 75 Md. App. 214, 220-21 (1988).
Second, the court must, within its discretion, “separately find that the acts
committed in bad faith or without substantial justification warrant the assessment of
attorney’s fees.” Christian, 459 Md. at 21. Nonetheless, “even if the circuit court
determines that a party has acted in bad faith or without substantial justification,” it can
“decline to impose sanctions, in the exercise of its discretion.” Blitz v. Beth Isaac Adas
Israel Congregation, 115 Md. App. 460, 489 (1997), rev’d on other grounds, 352 Md. 31
(1998) (emphasis added); Blanton v. Equitable Bank Nat’l Ass’n, 61 Md. App. 158, 166
(1985). Indeed, the circuit court’s judgment call will not be disturbed unless it is “so far
off the mark as to amount to an abuse of discretion.” Century I Condo. Ass’n, Inc. v. Plaza
Condo. Joint Venture, 64 Md. App. 107, 120 (1985).
On this record, we discern no abuse of discretion in the circuit court’s denial of the
joint motion for sanctions. Even if Andrea and Lisa could show that Amy brought her
November 3 motion to reconsider in bad faith or without substantial justification, the circuit
court was well within its discretion to deny an award of sanctions as a matter of judicial
economy. Though the circuit court did not go into detail about why it denied the joint
motion for sanctions, we observe that the court could have easily concluded that granting
the motion would have only spawned further litigation. Instead, the circuit court—
37 justifiably, in our view—simply allowed this case to mercifully come to an end after it
struck Amy’s Third Amended Petition. Even if Amy’s motion to reconsider was deficient,
we hold that the circuit court did not abuse its discretion in denying the imposition of
sanctions.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
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