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
22-P-1128
LINDA S. RORIE, personal representative, 1
vs.
JEANNE MCCLAIN-PETERSON & others 2; Edward A. McClain, Jr., third- party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Linda S. Rorie, commenced this action as
personal representative of the estate of her husband, Edward
Arthur McClain (decedent). Rorie alleged that three of the
decedent's siblings, including defendants Jeanne McClain-
Peterson and Scott McClain, 3 conspired to name themselves as the
beneficiaries of the decedent's deferred annuity contract with
defendant AXA Equitable Life Insurance Company (AXA). 4 A judge
1 Of the estate of Edward Arthur McClain.
2 Scott McClain, AXA Equitable Life Insurance Company, and Vista Verde Corporation.
3 This appeal involves several members of the McClain family. To avoid confusion, we refer to the members of the McClain family by their first names.
4 Rorie also named Vista Verde Corporation (Vista Verde) as a defendant. The parties stipulated to a dismissal of Vista of the Probate and Family Court concluded that Rorie did not
have standing and ordered that she pay attorney's fees to Jeanne
and Scott. Rorie timely appeals from the resulting judgment of
dismissal; amended judgment on cross claim; orders entered May
5, 2022, on Rorie's motions to strike and for rehearing and to
alter and amend the judgments; and orders on attorney's fees
entered April 7, 2021, and March 11, 2022. We agree that Rorie
does not have standing as personal representative of the estate,
and we discern no abuse of discretion in the decision to award
attorney's fees. Accordingly, we affirm.
Background. The following facts are undisputed for
purposes of this appeal. On June 10, 2005, AXA issued a
deferred annuity contract (policy or AXA policy) to the decedent
for coverage on his life. The decedent named his son, Edward A.
McClain, Jr., as the sole beneficiary. 5 On September 7, 2013,
the decedent executed a power of attorney in favor of a brother,
Neil McClain. The decedent died on November 11, 2013. The
following day, Neil submitted a change of beneficiary form to
AXA that he had executed in October under his power of attorney
Verde, and this appeal does not raise any issues concerning Vista Verde.
5 Edward, Jr., was brought into this lawsuit through AXA, which sought interpleader relief and named Edward, Jr., as a third- party defendant.
2 and that named himself, Jeanne, and Scott as the beneficiaries
of the AXA policy.
In 2013, Rorie commenced a Superior Court action in her
individual capacity against Neil, Jeanne, and Scott. In part,
Rorie claimed that the decedent lacked the capacity to give Neil
the power of attorney and, through fraud or undue influence, his
siblings induced the decedent to change his power of attorney
and designate new beneficiaries for the AXA policy. The
Superior Court action was dismissed without prejudice on July 5,
2017, when Rorie failed to comply with a discovery order.
Then, in 2017, Neil and his wife filed for bankruptcy. In
the bankruptcy proceeding, Rorie filed a claim in her individual
capacity and as personal representative of the estate. Rorie
argued that the change of beneficiary form was not effective
until submitted to AXA, that Neil's power of attorney ended on
the decedent's death, and that Neil had no authority to submit
the change of beneficiary form to AXA the day after the decedent
died. Rorie requested a finding that the change of beneficiary
form was null and void. Neil and his wife stipulated that they
had no defense to the requested finding. On or around July 22,
2019, a judgment entered in the bankruptcy proceeding declaring
that Neil and his wife had "no interest" in the AXA policy and
that the change of beneficiary form was "null and void."
3 Also in 2017, Rorie commenced the underlying Probate and
Family Court action as personal representative of the estate. 6
In part, Rorie again asserted the decedent's lack of capacity to
contract and claimed fraud or undue influence in the change of
beneficiaries for the AXA policy. In an order entered October
15, 2020, a Probate and Family Court judge concluded that Rorie,
as personal representative, did not have standing. Later, the
judge awarded Jeanne and Scott attorney's fees. Separately, on
November 30, 2020, Jeanne, Scott, and Edward, Jr., filed a
settlement agreement resolving the claims among themselves by
splitting the proceeds of the AXA policy, two-thirds to Jeanne
and Scott, jointly, and one-third to Edward, Jr. 7
Discussion. 1. Standing. We first address whether Rorie,
as personal representative, has standing. 8 "A plaintiff must
6 Rorie originally named Neil and his wife as defendants but, after learning of their bankruptcy proceeding, filed an amended complaint that did not name them as defendants.
7 In a motion requesting to supplement the record, Jeanne and Scott assert that they and Edward, Jr., entered into the settlement agreement on or around June 19, 2020. While nothing in our decision turns on this date, we note that the settlement agreement was reached almost one year after Neil stipulated in the bankruptcy proceeding that the change of beneficiary form was null and void.
8 In her notice of appeal and appellate brief, Rorie states that she is appealing in her individual capacity and as personal representative of the estate. Because Rorie brought the underlying complaint as personal representative of the estate, we are limited to considering whether Rorie has standing to pursue the claims she brought in that capacity.
4 have standing, a definite interest in the matters in contention
in the sense that [her] rights will be significantly affected by
a resolution of the contested point." Bonan v. Boston, 398
Mass. 315, 320 (1986). Where "standing in this case [is a]
question[] of law, our review is de novo." Caputo v. Moulton,
102 Mass. App. Ct. 251, 253 (2023). 9
Rorie maintains that, as personal representative, she has
standing to enforce any contracts entered into by the decedent.
The cases she cites do not stand for that broad proposition.
Bettencourt v. Bettencourt, 362 Mass. 1, 11 (1972), held that
the executor of an estate could bring an action to determine
whether the decedent had entered into a reciprocal will. Tyler
v. Treasurer & Receiver Gen., 226 Mass. 306, 308 (1917), did not
address whether a personal representative had standing to
enforce a contract, and instead addressed whether the
beneficiary of a contract had standing to enforce the contract. 10
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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
22-P-1128
LINDA S. RORIE, personal representative, 1
vs.
JEANNE MCCLAIN-PETERSON & others 2; Edward A. McClain, Jr., third- party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Linda S. Rorie, commenced this action as
personal representative of the estate of her husband, Edward
Arthur McClain (decedent). Rorie alleged that three of the
decedent's siblings, including defendants Jeanne McClain-
Peterson and Scott McClain, 3 conspired to name themselves as the
beneficiaries of the decedent's deferred annuity contract with
defendant AXA Equitable Life Insurance Company (AXA). 4 A judge
1 Of the estate of Edward Arthur McClain.
2 Scott McClain, AXA Equitable Life Insurance Company, and Vista Verde Corporation.
3 This appeal involves several members of the McClain family. To avoid confusion, we refer to the members of the McClain family by their first names.
4 Rorie also named Vista Verde Corporation (Vista Verde) as a defendant. The parties stipulated to a dismissal of Vista of the Probate and Family Court concluded that Rorie did not
have standing and ordered that she pay attorney's fees to Jeanne
and Scott. Rorie timely appeals from the resulting judgment of
dismissal; amended judgment on cross claim; orders entered May
5, 2022, on Rorie's motions to strike and for rehearing and to
alter and amend the judgments; and orders on attorney's fees
entered April 7, 2021, and March 11, 2022. We agree that Rorie
does not have standing as personal representative of the estate,
and we discern no abuse of discretion in the decision to award
attorney's fees. Accordingly, we affirm.
Background. The following facts are undisputed for
purposes of this appeal. On June 10, 2005, AXA issued a
deferred annuity contract (policy or AXA policy) to the decedent
for coverage on his life. The decedent named his son, Edward A.
McClain, Jr., as the sole beneficiary. 5 On September 7, 2013,
the decedent executed a power of attorney in favor of a brother,
Neil McClain. The decedent died on November 11, 2013. The
following day, Neil submitted a change of beneficiary form to
AXA that he had executed in October under his power of attorney
Verde, and this appeal does not raise any issues concerning Vista Verde.
5 Edward, Jr., was brought into this lawsuit through AXA, which sought interpleader relief and named Edward, Jr., as a third- party defendant.
2 and that named himself, Jeanne, and Scott as the beneficiaries
of the AXA policy.
In 2013, Rorie commenced a Superior Court action in her
individual capacity against Neil, Jeanne, and Scott. In part,
Rorie claimed that the decedent lacked the capacity to give Neil
the power of attorney and, through fraud or undue influence, his
siblings induced the decedent to change his power of attorney
and designate new beneficiaries for the AXA policy. The
Superior Court action was dismissed without prejudice on July 5,
2017, when Rorie failed to comply with a discovery order.
Then, in 2017, Neil and his wife filed for bankruptcy. In
the bankruptcy proceeding, Rorie filed a claim in her individual
capacity and as personal representative of the estate. Rorie
argued that the change of beneficiary form was not effective
until submitted to AXA, that Neil's power of attorney ended on
the decedent's death, and that Neil had no authority to submit
the change of beneficiary form to AXA the day after the decedent
died. Rorie requested a finding that the change of beneficiary
form was null and void. Neil and his wife stipulated that they
had no defense to the requested finding. On or around July 22,
2019, a judgment entered in the bankruptcy proceeding declaring
that Neil and his wife had "no interest" in the AXA policy and
that the change of beneficiary form was "null and void."
3 Also in 2017, Rorie commenced the underlying Probate and
Family Court action as personal representative of the estate. 6
In part, Rorie again asserted the decedent's lack of capacity to
contract and claimed fraud or undue influence in the change of
beneficiaries for the AXA policy. In an order entered October
15, 2020, a Probate and Family Court judge concluded that Rorie,
as personal representative, did not have standing. Later, the
judge awarded Jeanne and Scott attorney's fees. Separately, on
November 30, 2020, Jeanne, Scott, and Edward, Jr., filed a
settlement agreement resolving the claims among themselves by
splitting the proceeds of the AXA policy, two-thirds to Jeanne
and Scott, jointly, and one-third to Edward, Jr. 7
Discussion. 1. Standing. We first address whether Rorie,
as personal representative, has standing. 8 "A plaintiff must
6 Rorie originally named Neil and his wife as defendants but, after learning of their bankruptcy proceeding, filed an amended complaint that did not name them as defendants.
7 In a motion requesting to supplement the record, Jeanne and Scott assert that they and Edward, Jr., entered into the settlement agreement on or around June 19, 2020. While nothing in our decision turns on this date, we note that the settlement agreement was reached almost one year after Neil stipulated in the bankruptcy proceeding that the change of beneficiary form was null and void.
8 In her notice of appeal and appellate brief, Rorie states that she is appealing in her individual capacity and as personal representative of the estate. Because Rorie brought the underlying complaint as personal representative of the estate, we are limited to considering whether Rorie has standing to pursue the claims she brought in that capacity.
4 have standing, a definite interest in the matters in contention
in the sense that [her] rights will be significantly affected by
a resolution of the contested point." Bonan v. Boston, 398
Mass. 315, 320 (1986). Where "standing in this case [is a]
question[] of law, our review is de novo." Caputo v. Moulton,
102 Mass. App. Ct. 251, 253 (2023). 9
Rorie maintains that, as personal representative, she has
standing to enforce any contracts entered into by the decedent.
The cases she cites do not stand for that broad proposition.
Bettencourt v. Bettencourt, 362 Mass. 1, 11 (1972), held that
the executor of an estate could bring an action to determine
whether the decedent had entered into a reciprocal will. Tyler
v. Treasurer & Receiver Gen., 226 Mass. 306, 308 (1917), did not
address whether a personal representative had standing to
enforce a contract, and instead addressed whether the
beneficiary of a contract had standing to enforce the contract. 10
9 Rorie contends that Jeanne and Scott are the ones who lack standing. However, Jeanne and Scott have a "definite interest in the matters in contention," Bonan, 398 Mass. at 320, where they were arguably named beneficiaries of the AXA policy.
10Rorie also maintains that the decedent could have brought several of the claims in this action, that they survived his death, and that she, as personal representative, has standing to pursue them. See Kraft Power Corp. v. Merrill, 464 Mass. 145, 149-150 (2013). Based on the record before us, Rorie did not raise this argument below, and it is therefore waived. See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86 (2014).
5 Alternatively, Rorie asserts that, as personal
representative, she has standing because the estate has an
economic interest in the proceeds of the AXA policy. In
particular, Rorie asserts that if the change of beneficiary form
were valid, (1) it would create separate interests in each
beneficiary individually and (2) Neil's forfeited interest would
revert to the estate. See Kruger v. John Hancock Mut. Life Ins.
Co., 298 Mass. 124, 128-129 (1937). To reach this conclusion,
Rorie ignores the policy language (discussed below) and relies
on the proposition that "[i]f under a life insurance policy
taken out by the insured a beneficiary's interest is terminated
by his death before the death of the insured and no other
beneficiary is designated to take that interest, it reverts as a
lapsed trust to the legal representative of the insured." Id.
at 129. 11
We may assume for purposes of our review that the change of
beneficiary form, if valid, created a separate interest in each
beneficiary individually. However, it does not follow that
Neil's lapsed interest reverted to the estate. The cases on
which Rorie relies involved policies that did not designate
11If, instead, the change of beneficiary "create[d] a joint interest in the [three] named beneficiaries with the right in the survivor[s] to take the whole of the proceeds," Kruger, 298 Mass. at 128, Neil's forfeited interest would go to Jeanne and Scott.
6 another beneficiary to take the interest other than the estate.
See Taylor v. Sanderson, 330 Mass. 616, 620-621 (1953); Kruger,
298 Mass. at 129; Hersam v. Aetna Life Ins. Co., 225 Mass. 425,
427 (1917). Here, in contrast, the AXA policy included the
following provisions, which detailed how "[a]ny part of a death
benefit payable for which there [was] no named Beneficiary
living at the Annuitant's death" would be paid.
"Any part of a death benefit payable for which there is no named Beneficiary living at the Annuitant's death will be payable in a single sum to the surviving Owner. If there is no surviving Owner, payment will be made to the Owner's surviving spouse. If there is no surviving spouse, payments will be made to the Owner's surviving children in equal shares. If there are no surviving children, then payment will be made to the Owner's estate."
The decedent was the annuitant and the sole owner of the
policy. When he died, there were no other owners of the policy.
In these circumstances, the policy provided that payment would
"be made to the Owner's surviving spouse," Rorie. Thus, even if
Neil had a separate interest in the policy, that interest did
not revert to the estate, and Rorie has not shown how the estate
has a "definite interest in the matters in contention." Bonan,
398 Mass. at 320.
2. Attorney's fees. We next address whether the Probate
and Family Court judge abused her discretion in awarding
attorney's fees under G. L. c. 215, § 45, which "vests
'discretion [in] the court' to award, or shift, costs and fees
7 'as justice and equity may require.'" Matter of the Estate of
King, 455 Mass. 796, 805 (2010), quoting G. L. c. 215, § 45.
"These words establish a broad standard," and "so is the judge's
degree of discretion." Matter of the Estate of King, supra.
Nonetheless, the standard still "require[s] a reason, grounded
in equity, why an award shifting fees should be made." Id.
"[A] judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The Probate and Family Court judge who awarded attorney's
fees relied in large part on what happened in the prior Superior
Court action. She considered that the Superior Court action was
dismissed for failure to comply with a discovery order and that
Rorie's then counsel testified that the dismissal did not matter
because Rorie, as personal representative, could seek the same
relief in the Probate and Family Court. The Probate and Family
Court judge further noted that, in denying a motion to vacate, a
Superior Court judge found that "the exhibits submitted to the
court strongly suggest[ed] that Rorie lack[ed] a meritorious
claim for fraud or undue influence." Finally, the Probate and
Family Court judge who awarded attorney's fees noted that the
8 Superior Court judge's warning "should have been a strong
cautionary note to [Rorie] about the risk of pursuing her
strategy to file in Probate Court" and that the effect of
Rorie's strategy "was to require [Jeanne and Scott] to bear
legal fees twice." However, the Probate and Family Court judge
also specifically found that Rorie did not "act[] frivolously."
The Probate and Family Court judge's analysis shows that
she carefully considered the factors relevant to awarding
attorney's fees, including that Rorie "provoked a needless round
of litigation." Strand v. Hubbard, 31 Mass. App. Ct. 914, 914
(1991). Given the broad language of G. L. c. 215, § 45, we
9 discern no abuse of discretion in the judge's decision to award
attorney's fees under that statute. 12
The judgment of dismissal; amended judgment on cross claim; orders entered May 5, 2022, on Rorie's motions to strike and for rehearing and to alter and amend the judgments; and orders on attorney's fees entered April 7, 2021, and March 11, 2022, are affirmed.
By the Court (Hand, Hershfang & Brennan, JJ. 13),
Assistant Clerk
Entered: March 20, 2024.
12The requests by Rorie and by Jeanne and Scott, for awards of appellate costs and attorney's fees, are denied.
13 The panelists are listed in order of seniority.