In the Matter of Jacobson

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

Albright, J., did not participate in the Court’s
decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.

Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2022-12-07 09:46-05:00

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

A. Parties’ Contentions

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

A. Parties’ Contentions

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).

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 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

A. Parties’ Contentions

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).

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 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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The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/1741s21cn.pdf