          United States Court of Appeals
                        For the First Circuit


No. 17-1442

               CAROL DIANE COOPER, and JOHN SCOTT COOPER,
              As Personal Representative of the Estate of
                     Peter M. Cooper, Jr., Deceased,

                        Plaintiffs, Appellees,

                                  v.

          ALYSSA JANE D'AMORE, f/k/a/ Alyssa J. Cooper,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                                Before

                      Kayatta, Stahl, and Barron,
                            Circuit Judges.


     Robert J. O'Regan, with whom Burns & Levinson LLP was on
brief, for appellant.
     Keith P. Carroll, with whom Andrew Nathanson and Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for appellees.


                           February 2, 2018
            STAHL, Circuit Judge.            In 2003, Peter M. Cooper, Jr.

("decedent") established an Individual Retirement Account ("IRA")

with Mesirow Financial ("Mesirow IRA"), and designated his then

wife, Alyssa Jane D'Amore ("D'Amore"), as beneficiary.                   In 2006,

the couple divorced, but decedent never revoked the beneficiary

designation.    In 2011, decedent transferred the majority of his

Mesirow   IRA   assets    to   a    TD    Ameritrade    IRA.    In     2012,   upon

decedent's death, Mesirow distributed the assets remaining in the

Mesirow IRA to D'Amore. Carol Diane Cooper, the mother and primary

beneficiary of decedent, and John S. Cooper, the executor of

decedent's estate, (collectively "the Coopers") sued D'Amore,

claiming that the Mesirow assets should have been distributed to

decedent's estate.       The district court ultimately granted summary

judgment for the Coopers.

            After   careful        consideration,      we   conclude    that    the

district court improperly granted summary judgment for the Coopers

because decedent's transfer did not terminate the Mesirow IRA.

            I. Background

            In 2003, decedent, an investment executive/bond trader

at Mesirow Financial Inc., established a Mesirow IRA through his

employer.    The Mesirow Custodial Agreement governed the IRA.1                  At




     1 The IRA was originally governed by a Trust Agreement with
Delaware Charter Trust.     In 2010, Mesirow took over as the
custodian and the Mesirow Custodial Agreement subsequently


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the time, decedent was married to D'Amore and designated her as

the beneficiary.     Decedent managed multiple financial investments

for himself as well as other family members.                    In 2006, decedent

and    D'Amore   divorced   and    entered       into    a    Martial    Settlement

Agreement   which    provided,    in     part,    that       "[e]ach    party   shall

continue to own as his or her own separate property any Individual

Retirement Account (IRA), pension or retirement plan in his or her

name, and each does hereby waive any claim to such account of the

other."      Notwithstanding       the      Martial      Settlement      Agreement,

decedent did not revoke the beneficiary designation for the Mesirow

IRA.

            On August 18, 2011, decedent completed a TD Ameritrade

"Account Transfer Form" in order to transfer his assets from the

Mesirow IRA to a TD Ameritrade IRA.               One provision in the form

stated: "This is a total transfer from a brokerage account."

Decedent checked the box next to this provision. Another provision

in the form, entitled "Transfer Agreement," provided: "Unless

otherwise indicated, I authorize the Transferor to liquidate any

nontransferable proprietary money market fund assets and mutual

fund assets that are part of my account and to transfer the

resulting   credit   balance      to   my    account     with    TD    Ameritrade."

Decedent did not initial this portion of the form.


governed the IRA.      This change had no effect on the beneficiary
designation.


                                       - 3 -
            On September 7, 2011, decedent received a letter from

Mesirow Financial, entitled "Non-Deliverable Assets(s)."                     The

letter provided that certain assets in decedent's account were

"not transferable."        The letter also provided that if a "request

is   not   received   within     60   days    your     account   will   be   re-

established."    On September 24, 2011, decedent sent an email to a

financial advisor at Mesirow Financial, asking if he could keep

the nontransferable assets in the account.

            Decedent continued to receive financial statements for

the Mesirow IRA until he died. Decedent's Mesirow statements post-

transfer included the same account number listed on his statements

pre-transfer.    Unlike the earlier statements which listed D'Amore

as the primary beneficiary, the statements post-transfer indicated

that the primary beneficiary designation was "not provided."

            On July 21, 2012, decedent died.             Thereafter, Mesirow

distributed the assets that remained in the Mesirow IRA to D'Amore

pursuant to the beneficiary designation.

            In October of 2014, the Coopers sued D'Amore, seeking to

recover the assets distributed by Mesirow to D'Amore.              The parties

filed cross-motions for summary judgment.              On November 10, 2015,

the district court granted summary judgment for the Coopers,

finding that upon divorce, D'Amore's beneficiary designation was

revoked    pursuant   to   the   Illinois     Trusts    and   Dissolutions    of

Marriage Act.     Cooper v. D'Amore, No. CV 14-14041-RGS, 2015 WL


                                      - 4 -
6962834, at *4 (D. Mass. Nov. 10, 2015).            On November 20, 2015,

D'Amore filed a motion for reconsideration.          Thereafter, the court

determined that its summary judgment decision was improper because

Delaware law, not Illinois law, governed the IRA.           On December 4,

2015, the court imposed sanctions on the Coopers' counsel for the

failure to turn over an authenticated copy of the Delaware Charter

Trust document, and granted D'Amore's motion for summary judgment.

           The Coopers appealed and this Court vacated the district

court's entry of summary judgment on behalf of D'Amore because it

found that the Delaware Charter IRA Trust Agreement was not in

effect at the time the assets were distributed in 2012.            Cooper v.

D'Amore, 663 F. App'x 1, 2–3 (1st Cir. 2016).2

           On remand, the parties again moved for summary judgment.

This time, the district court granted summary judgment for the

Coopers.   The court explained that from 2006, when the couple

divorced, until August 2011, when the decedent transferred his

assets, D'Amore was the beneficiary, but when decedent requested

a   transfer   of   all   of   his   assets   in   2011,   the   beneficiary

designation was automatically revoked and the account terminated.




      2The Court nonetheless found that the district court did not
abuse its discretion when it sanctioned plaintiffs' counsel for
"misleading the court during summary judgment by failing to produce
or discuss a document." Cooper, 663 F. App'x at 2–3 (1st Cir.
2016).


                                     - 5 -
Cooper v. D'Amore, No. CV 14-14041-RGS, 2017 WL 74279, at *4-*5

(D. Mass. Jan. 6, 2017).     This timely appeal followed.

            II. Analysis

            We review de novo a district court's grant of summary

judgment.   Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217,

223 (1st Cir. 2013).       "Where the parties file cross-motions for

summary judgment, we employ the same standard of review, but view

each motion separately, drawing all inferences in favor of the

nonmoving party."    Fadili v. Deutsche Bank Nat'l. Tr. Co., 772

F.3d 951, 953 (1st Cir. 2014).

            Before considering the merits of the appeal, we first

address the Coopers' contention that D'Amore failed to properly

raise her arguments before the district court on summary judgment.3

"[I]t is a virtually ironclad rule that a party may not advance

for the first time on appeal either a new argument or an old

argument that depends on a new factual predicate."          Cochran v.

Quest Software, Inc., 328 F.3d 1, 11–12 (1st Cir. 2003).       We find

that D'Amore argued before the district court that the Mesirow IRA

never terminated.4   Because that issue is dispositive, we need not



     3 The Coopers claim that "[a]lthough she could have done so
earlier, [D'Amore] brought [her] arguments [that she now makes on
appeal] to the District Court's attention only in the papers
supporting her Motion for Reconsideration of the Court's grant of
summary judgment to the Coopers."
     4 In Defendant's Renewed Motion for Summary Judgment and
Incorporated Memorandum of Law, D'Amore argued that "[b]ecause the


                                 - 6 -
consider whether D'Amore's other arguments raised on appeal were

properly preserved before the district court.

          In   granting   summary    judgment   for   the   Coopers,   the

district court determined that "because Peter Cooper's written

direction for a total asset transfer [in 2011] terminated the

[Mesirow] Custodial Agreement, it also terminated the beneficiary

designation associated with the custodial account."         Cooper, 2017

WL 74279, at *3.    The court noted that "the [Mesirow] Custodial

Agreement required only the delivery of an instruction for a

transfer. It says nothing about the execution of the instruction."

Id. at *3 n.2. As such, "in the absence of a continuing beneficiary

designation, the Mesirow IRA assets became part of Peter Cooper's

estate upon his death."    Id. at *3.

          On appeal, all parties agree, as does this Court, that

the Mesirow Custodial Agreement was governed by Illinois law at

the time of decedent's transfer request in 2011.            Further, all

parties agree that the beneficiary designation was never revoked

prior to the transfer request.      Thus, the only question to resolve

on appeal is whether decedent's transfer request resulted in the

termination of the Mesirow IRA in a manner that revoked the

designation of D'Amore as beneficiary before decedent died.




transfer instructions did not direct that all assets were to be
transferred . . . it could not have terminated the account."


                                 - 7 -
             Pursuant to Illinois law, "[t]he primary objective in

construing a contract is to give effect to the intent of the

parties."    Gallagher v. Lenart, 874 N.E.2d 43, 58 (Ill. 2007).                 "A

court must initially look to the language of a contract alone, as

the language, given its plain and ordinary meaning, is the best

indication of the parties' intent."                  Id.; see also Air Safety,

Inc. v. Teachers Realty Corp., 706 N.E.2d 882, 884 (Ill. 1999)

("[A]    court     initially   looks    to     the    language    of    a   contract

alone . . . .       If   the   language      of    the   contract      is   facially

unambiguous, then the contract is interpreted by the trial court

as a matter of law without the use of parol evidence.").                         "If

[however] the language of the contract is susceptible to more than

one meaning, it is ambiguous," and in that case, "a court may

consider extrinsic evidence to ascertain the parties' intent."

Gallagher, 874 N.E.2d at 58.

             The    Mesirow    Custodial          Agreement,     in    Article   XI,

Termination of Account, provides as follows:

        This Agreement shall terminate upon the distribution of
        all of the assets of the custodial account in accordance
        with Article IV, or, if earlier, when the Depositor
        delivers written direction to the Custodian to transfer
        all assets of the custodial account to a successor
        trustee, custodian of another retirement plan or
        directly to the Depositor.     Upon completion of such
        distribution, the Custodian shall be relieved from all
        further liability with respect to all amounts so paid
        and shall be fully acquitted and discharged from its
        responsibilities hereunder.




                                       - 8 -
           The Coopers claim that pursuant to Article XI, "while

the Custodial Agreement could terminate upon distribution of all

the assets, . . . the contract would in fact terminate earlier"

when the "Depositor delivers written direction to transfer all

assets."   D'Amore argues that the "Mesirow Custodial Agreement

could not have 'terminated' while any securities remained at

Mesirow because by its terms, the Mesirow Custodial Agreement

continued in force until the entire account was distributed."

           The plain language of Article XI is clear. Setting aside

the distribution of assets provision, in order to terminate the

account via a request to transfer, there must be a request for a

transfer of "all assets."

           An IRA is composed of a variety of assets.          Some of the

assets may not be transferable in their current form.          In order to

transfer   nontransferable   assets,    a   depositor   must    sell   the

nontransferable security and transfer the cash.

           In providing that a depositor must request a transfer of

all assets, Article XI does not distinguish between transferable

and nontransferable assets.    The only reasonable construction of

this clause is that a request to transfer all assets must be

precisely that: a request to transfer the transferable assets as

well as the nontransferable ones.           Had the contract meant to

provide otherwise, it could have stated that a transfer of all




                                - 9 -
assets      means    the        transfer   of    only   those     assets       that    are

transferable.

             In completing his transfer request, decedent had the

opportunity to transfer all of his assets out of the Mesirow

account, but he chose to direct a transfer of only those assets

that were transferable.               Were the Court to find that decedent

provided a request to transfer "all assets" by only checking the

one   box    on     the    TD    Ameritrade     Form,   the   rest      of     the    form,

specifically        the     Transfer       Agreement    section        which    required

decedent's initials, would be rendered meaningless.                          Decedent is

assumed     to    have     known    that     certain    assets    in    the     IRA   were

transferable, while others were nontransferable in their current

form.     See Hawkins v. Capital Fitness, Inc., 29 N.E.3d 442, 446

(Ill. App. Ct. 2015) ("[T]he act of signing legally signifies that

the individual had an opportunity to become familiar with and

comprehend the terms of the document he or she signed.").                               If

decedent wanted to direct a transfer of "all assets," he had to

authorize a change of the nontransferable assets so that they could

be transferred.           Rather than doing that, however, decedent chose

to transfer only those assets that were transferable.                        Thereafter,

his     agreement         with     Mesirow      continued     for      the     remaining

nontransferable assets in the account.

             And if there were any doubt about whether decedent wanted

the   nontransferable            assets    to   be   sold   and     transferred,       his


                                           - 10 -
communications with Mesirow on September 7 and 24, 2011 (ten months

before his death) make clear that he wanted to keep the account

open.     Simply put, there is no doubt that the Mesirow account

remained in place on the day decedent died.

               While we acknowledge that the Mesirow IRA statements

post-transfer failed to list D'Amore as the beneficiary, the

statements simply stated that the beneficiary was "not provided."

This does not establish that the beneficiary designation was

revoked.       Furthermore, the Plaintiffs' basis for their claim is

that    when    the   Mesirow    IRA    terminated,   D'Amore's     beneficiary

designation was revoked.         Because we find that the account did not

terminate, the Coopers' argument that the beneficiary designation

was revoked by account termination necessarily fails.

               III. Conclusion

               For these reasons, we reverse the grant of summary

judgment for the Coopers.          A request to transfer all assets was

never   made;     therefore,     the    beneficiary   designation    was   never

revoked and D'Amore was entitled to the remaining assets in the

account    upon       decedent's       death.    Because    this     issue    is

determinative, and there are no other material facts in dispute,

we remand the case to the district court with directions to enter

summary judgment for D'Amore.




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