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
23-P-23
DONNA A. LOPES1
vs.
ERNC OPERATING, LLC.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Donna Lopes, as the personal representative
of the estate of Kenneth Jefferson (estate), appeals from a
Superior Court judge's order allowing the defendant's motion for
judgment notwithstanding the verdict, or, in the alternative, a
new trial, following a jury verdict in the plaintiff's favor on
her wrongful death claim. We reverse in part, vacate in part,
and remand for further proceedings.
Background. The plaintiff's brother, Kenneth Jefferson, a
resident of the defendant's rehabilitation and nursing facility,
died on May 22, 2015, after suffering a fatal injury at the
1 Individually and as personal representative of the estate of
Kenneth L. Jefferson.
2 Doing business as The Rehabilitation & Nursing Center at
Everett.
facility a week earlier. According to the trial judge's
memorandum of decision and order on the defendant's postjudgment
motion, "the jury could have concluded that given all the
knowledge the nurses had about Jefferson's fragile skull, his
propensity to bang his head after an altercation, and the harm
that could result, the nurses should have stayed with Jefferson
after his altercation [with another patient] on the morning of
May 18, 2015[,] and intervened before he banged his head. The
jury could have concluded it was a breach of care to fail to do
so and that breach caused Jefferson's [fatal] injury."
This wrongful death action against the defendant was filed
in the Superior Court on May 21, 2018. The complaint as
originally filed named the "Estate of Kenneth L. Jefferson" as
the plaintiff. On September 6, 2018, pursuant to Rule 9A of the
Rules of the Superior Court (2017), the defendant served a
motion to dismiss the complaint, contending, inter alia, that
because a wrongful death action must be initiated by the
personal representative of an estate, see G. L. c. 229, § 2, the
estate did not have standing.
On September 20, after receiving the motion to dismiss,
Lopes filed a petition in the Norfolk Probate and Family Court
for formal appointment as personal representative of Jefferson's
estate pursuant to G. L. c. 190B, § 3-402. Lopes used a
preprinted form that required her either to affirm that her
2
petition was "filed within the time period permitted by
law" -- that is, that "[t]hree years or less have passed since
the Decedent's death" -- or to identify "circumstances [that]
authorize tardy proceedings [and] (include statutory
reference)." In the space allotted to explain such
circumstances, Lopes wrote, "My brother died intestate and
without assets. No legal actions concerning his estate have
been taken prior to this petition. I was unaware of the need to
probate his estate until I filed a wrongful death case."
One week later, the plaintiff served the defendant with her
opposition to the motion to dismiss, which disclosed that Lopes
had filed the application to be appointed personal
representative and was awaiting appointment. The rule 9A
package with the motion to dismiss and the plaintiff's
opposition was filed on October 11, 2018, and a Superior Court
judge held a hearing on the motion on November 27.
While the motion to dismiss was under advisement in the
Superior Court, on December 19, 2018, a Probate and Family Court
judge issued a decree and order on Lopes's petition for formal
adjudication (decree), finding that Lopes was "qualified to
serve as Personal Representative pursuant to G. L. c. 190B,
§ 3-203," and issued letters of authority appointing Lopes as
3
personal representative of Jefferson's estate.3 Under both the
decree and letters of authority, Lopes's appointment as a
personal representative was without restriction.4 The next day,
the Superior Court motion judge issued an order denying the
defendant's motion to dismiss without prejudice and giving Lopes
forty-five days to amend the complaint to substitute a proper
plaintiff. On January 9, 2019, the plaintiff timely filed an
amended complaint that substituted "Donna A. Lopes, Individually
and as Administratrix of the Estate of Kenneth L. Jefferson" as
the plaintiff.
In separate motions in limine, in a motion for a directed
verdict at the close of the plaintiff's case, and again at the
close of evidence, the defendant repeatedly, and unsuccessfully,
argued that Lopes was incompetent or lacked standing to bring
claims under G. L. c. 229 and to recover damages because she did
not seek appointment within three years of Jefferson's death as
required by G. L. c. 190B, § 3-108. After a ten-day jury trial,
on October 4, 2021, the jury returned a verdict in the
3 We have taken judicial notice of the Probate and Family Court
judge's decree, as the parties failed to provide it. See Jarosz
v. Palmer, 436 Mass. 526, 530 (2002).
4 The letters of authority issued to Lopes, signed by the
register of probate, included a space for restrictions, which
was left blank, and a box that could be checked to indicate that
the personal representative had been appointed "[p]ursuant to
G. L. c. 190B, § 3-108 (4)." The box was not checked.
4
plaintiff's favor, awarding $500,000 for Jefferson's conscious
pain and suffering.
The defendant timely served and filed a motion for judgment
notwithstanding the verdict, or, in the alternative, for a new
trial. See Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402
(1998); Mass. R. Civ. P. 59, 365 Mass. 827 (1974). In addition
to its argument concerning Lopes's standing, the defendant
asserted that the evidence of negligence was insufficient to
sustain the verdict and that a variety of trial errors warranted
at least a new trial.
In an order issued on April 19, 2022, the trial judge
allowed the defendant's motion. The judge concluded that Lopes
did not have standing to assert the claim for conscious pain and
suffering on behalf of the estate after all because she had
filed her petition for appointment more than three years after
Jefferson's death and her claim was therefore barred under G. L.
c. 190B, § 3-108. The judge also ruled (1) that she had
committed prejudicial error by admitting in evidence part of a
statement of deficiency issued against the defendant by the
United States Department of Health and Human Services (DHHS) and
(2) that an error on the special verdict slip was prejudicial to
the defendant and warranted a new trial. Because Lopes's lack
of standing made a new trial unnecessary, the judge vacated the
5
judgment on the jury verdict and ordered entry of judgment for
the defendant. This appeal followed.
Discussion. 1. Standing. The trial judge allowed the
defendant's motion for judgment notwithstanding the verdict
based on her conclusion that Lopes lacked standing. A motion
for judgment notwithstanding the verdict presents a question of
law, which we review de novo. See O'Brien v. Pearson, 449 Mass.
377, 383 (2007).
The exclusive right to bring a wrongful death action on
behalf of a decedent's statutory beneficiaries rests with the
duly-appointed "executor or administrator" of the deceased's
estate, with the obligation to commence the action "within three
years from the date of death." G. L. c. 229, § 2. See Marco v.
Green, 415 Mass. 732, 735 (1993); Gaudette v. Webb, 362 Mass.
60, 71 (1972). A claim for conscious suffering, which is
awarded to the estate if successful, must also be brought by the
executor or administrator. See G. L. c. 229, § 6. Although the
"Estate of Kenneth L. Jefferson" filed the original complaint
within the three-year statute of limitations, at that time Lopes
had not yet been appointed as the personal representative of the
estate.
However, when Lopes was appointed personal representative,
her appointment related back to the filing of the original
complaint. "The powers of a personal representative relate back
6
in time to give acts by the person appointed which are
beneficial to the estate occurring prior to appointment the same
effect as those occurring thereafter." G. L. c. 190B, § 3-701.
See Hatch v. Proctor, 102 Mass. 351, 354 (1869) (where "executor
de son tort obtains letters of administration pendente lite
. . . the letters of administration, by operation of law, make
valid all acts of the administrator in settlement of the estate
from the time of the death. They become by relation lawful acts
of administration"); Alvord v. Marsh, 12 Allen 603, 605 (1866)
(where "executrix de son tort becomes herself afterward the
lawful administratrix . . . [h]er acts . . . become by relation
lawful acts of administration . . . to the same extent as if
they had occurred after the letters of administration were
granted"). See also Estate of Gavin v. Tewksbury State Hosp.,
468 Mass. 123, 136 n.23 (2014) (noting Commonwealth's concession
that relation back principles could apply to wrongful death
claim improperly filed by estate before appointment of personal
representative). "Particularly relevant is the familiar law
that an amendment may be allowed which would bring in a party
who, when added, would have been barred by a statute of
limitations from commencing an independent action and, indeed,
7
that this is a reason to permit the amendment." Rafferty v.
Sancta Maria Hosp., 5 Mass. App. Ct. 624, 627 (1977).5
The defendant contends that Lopes's appointment as personal
representative by the Probate and Family Court judge was
invalid.6 "General Laws c. 190B, § 3-108, requires probate,
testacy, and appointment proceedings to be filed within three
years of a decedent's death." Matter of the Estate of Slavin,
492 Mass. 551, 551 (2023). To the extent § 3-108 creates an
"ultimate time limit" of three years for claims brought by or on
behalf of an estate, see Matter of the Estate of Kendall, 486
Mass. 522, 528-529 (2020), the plaintiff's wrongful death claims
were in fact filed within that time. The defendant reasons,
however, and the trial judge agreed, that because Lopes was
appointed more than three years after Jefferson's death, she was
necessarily appointed under G. L. c. 190B, § 3-108 (4), the
"late and limited" exception, which precludes the personal
representative from "possess[ing] estate assets . . . beyond
that necessary to confirm title thereto in the successors to the
5 Accordingly, it was not error to deny the motion to dismiss and
to allow Lopes to amend the complaint to name herself, as
personal representative of the estate, as the plaintiff.
6 The plaintiff's suggestion that the defendant waived the issue
or is somehow to blame for the issue not being decided at an
earlier stage in the proceedings is without merit. The
defendant made every reasonable effort to raise the issue before
and during the trial.
8
estate." The parties appear to agree that personal
representatives appointed pursuant to the late and limited
exception do not have standing to seek damages for conscious
pain and suffering because such damages are an asset of the
estate.
The defendant's argument is at odds with the terms of the
decree appointing the plaintiff. The record is clear that the
Probate and Family Court judge appointed Lopes as Jefferson's
personal representative without restriction, not on a late and
limited basis. This appointment was a matter within the
jurisdiction of the Probate and Family Court. See G. L.
c. 190B, § 1-302 (granting Probate and Family Court
"jurisdiction over all subject matter relating to . . . estates
of decedents" and "full power to make orders, judgments and
decrees and take all other action necessary and proper to
administer justice in the matters which come before it"). The
defendant's contention that Lopes does not have standing to sue
for conscious suffering due to her failure to petition for
appointment within three years of Jefferson's death is
effectively a collateral attack on the Probate and Family Court
judge's decree.
Although claims concerning standing go to subject matter
jurisdiction, and subject matter jurisdiction can be raised at
any time, "that does not mean that subject matter jurisdictional
9
issues can always be raised in every context and in every
forum." Brown v. Federal Nat'l Mtge. Ass'n, 481 Mass. 1036,
1036-1037 (2019). To the extent the defendant asserts that the
Probate and Family Court judge erroneously appointed Lopes as a
personal representative without limitation, raising this claim
in the Superior Court was an impermissible collateral attack.
See Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 493 (2006).
"The Probate Court in which the appointment was made had
jurisdiction of the subject matter. Any irregularity or want of
authority in its exercise can be corrected in that court only,
and the decree is not subject to collateral attack." Waitt v.
Harvey, 312 Mass. 384, 390 (1942).7
None of the cases cited by the defendant support the notion
that a Superior Court judge may scrutinize and invalidate an
appointment made by a judge of the Probate and Family Court.
To the contrary, the cases on which the defendant relies all
involve situations in which the Superior Court judge assessed
the specific statutes under which the personal representative
was actually acting or appointed to determine whether those
7 We note that the defendant was not powerless to challenge
Lopes's appointment in the Probate and Family Court. Through
Lopes's opposition to the defendant's motion to dismiss, the
defendant had actual notice of Lopes's petition for appointment
in the Norfolk Probate and Family Court within a week of her
filing the petition, and almost three months before the decree
appointing Lopes as personal representative was issued.
10
statutes conferred the requisite authority to pursue a wrongful
death claim. See, e.g., Marco, 415 Mass. at 739 (voluntary
administratrix acting pursuant to G. L. c. 195, § 16, since
repealed, not authorized to bring wrongful death claim);
Anderson vs. LeBrun, Mass. Super. Ct., No. 2079CV00653 (Hampden
County July 1, 2021) (plaintiff appointed under late and limited
exception did not have standing to pursue wrongful death claim);
Bennett vs. R.J. Reynolds Tobacco Co., Mass. Super. Ct., No.
2017-0603-BLS1 (Suffolk County January 8, 2018) (same).
Accordingly, it was error to allow the defendant's motion
for judgment notwithstanding the verdict on the ground that
Lopes's appointment as personal representative by a decree of
the Probate and Family Court was insufficient to give her
standing as to pursue the claim for Jefferson's conscious
suffering.
2. Motion for a new trial. a. Verdict slip. Considering
the defendant's motion for a new trial, the judge determined
that she had erred by providing a special verdict slip to the
jury that asked only if the plaintiff had proven that the
defendant's negligence "was a cause of Kenneth Jefferson's
death," but did not expressly inquire whether the plaintiff had
also proved that the defendant's negligence was a legal cause of
death. Notwithstanding the absence of a contemporaneous
objection, the judge concluded that this error warranted a new
11
trial. The plaintiff contends that allowing the motion on this
basis was an abuse of discretion. See Rabassa v. Cerasuolo, 97
Mass. App. Ct. 809, 815 (2020) ("We will not vacate a judge's
order granting a new trial unless we conclude that she abused
her discretion"). We agree.
"We read verdict slips in conjunction with the judge's
instructions to determine whether the slips could have misled or
confused the jury." Commonwealth v. Springfield Terminal Ry.
Co., 80 Mass. App. Ct. 22, 34 n.20 (2011). Here, the judge went
over the verdict form with the jury and instructed, consistent
with Doull v. Foster, 487 Mass. 1, 8 (2021), and with the
Superior Court Model Jury Instructions on General Negligence and
Causation (2021), "If you find that [the defendant's] negligence
was a cause of Kenneth Jefferson's injuries and that the
injuries were a predictable result of that negligence --
injuries, and death -- then you should answer yes, otherwise,
answer no" (emphasis added). "Viewing the verdict slips
alongside the judge's comprehensive and accurate instructions,"
Springfield Terminal Ry. Co., supra, it is unlikely that the
jury were misled or confused. There was no error warranting a
new trial.
b. Statement of deficiency. The defendant's motion for a
new trial was also predicated on the jury's exposure to a
heavily redacted statement of deficiency issued to the defendant
12
by DHHS. The statement was entered as an exhibit, over the
defendant's objection, without being authenticated, and after
the plaintiff had called her last witness. The trial judge
determined, and we agree, that it was error to admit the
exhibit. See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 135
(2002), quoting Herson v. New Boston Garden Corp., 40 Mass. App.
Ct. 779, 792 (1996) (evaluative reports, opinions, or
conclusions of government agencies inadmissible).
The trial judge concluded that the erroneous admission of
the exhibit was "prejudicial to the defendant." However, the
judge did not specifically state that the error warranted a new
trial, as she had with respect to the jury slip. A judge should
not "nullify a jury's verdict by granting a new trial unless it
appears on a survey of the whole case that otherwise a
miscarriage of justice would result." Wahlstrom v. JPA IV Mgt.
Co., 95 Mass. App. Ct. 445, 447 (2019), quoting Evans v.
Multicon Constr. Corp., 6 Mass. App. Ct. 291, 295 (1978). In
deciding whether to allow a motion for a new trial in a civil
case, "the question for the trial judge is not whether there has
been prejudicial error," but "whether an actual 'miscarriage of
justice would result' if the verdict were allowed to stand."
Wahlstrom, supra at 449, quoting Evans, supra.
Because the judge merely stated that the erroneous
admission of the statement of deficiency was prejudicial, but
13
did not state that the error required a new trial or address
whether an actual miscarriage of justice occurred because of it,
see Wahlstrom, 95 Mass. App. Ct. at 449, we are unable to infer
the judge's intent. Accordingly, on remand the judge should
make findings, consistent with the guidance in Wahlstrom, as to
whether to the erroneous admission of the statement of
deficiency warrants a new trial.
Conclusion. The order allowing the defendant's motion for
judgment notwithstanding the verdict is reversed, and the entry
of judgment for the defendant is vacated. The order allowing
the defendant's motion for a new trial is reversed to the extent
that the order granted a new trial based on the verdict slip.
We remand for further findings on whether the erroneous
admission of the statement of deficiency requires a new trial.
So ordered.
By the Court (Rubin, Massing,
& Desmond, JJ.8),
Assistant Clerk
Entered: February 1, 2024.
8 The panelists are listed in order of seniority.
14