           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 16, 2008

                                     No. 08-30409                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


FIRST COLONY LIFE INSURANCE COMPANY

                                                  Plaintiff - Appellee
v.

ALFRED J KREPPEIN, JR

                                                  Defendant - Appellant
v.

RYAN BRICE CRANE; LAUREL CRANE LUQUETTE

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:05-CV-6849


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Alfred Kreppein, Jr. appeals the district court’s judgment against him in
an interpleader action filed to determine who was the lawful beneficiary (or




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                     No. 08-30409

beneficiaries) under a life insurance policy issued in the name of Stephanie
Kreppein. For the reasons provided below, we affirm.
                                 I. BACKGROUND
      Stephanie Kreppein and Alfred Kreppein, Jr. were married in November
2000. According to Mr. Kreppein, he and his wife were accumulating large
amounts of debt on real estate investments and, therefore, decided to purchase
life insurance policies to protect each other in the event of the death of one of
them. In or around November 2002, Mr. Kreppein contacted Terry Sullivan—a
friend of the Kreppeins and an insurance broker—who then assisted the
Kreppeins in purchasing separate life insurance policies from First Colony Life
Insurance Company (“First Colony”). Mrs. Kreppein’s insurance policy, issued
on February 3, 2003, was a term life insurance policy for $500,000.                  Mr.
Kreppein was named the primary beneficiary and Mrs. Kreppein’s children from
another marriage—Ryan Brice Crane and Laurel Crane Luquette—were named
contingent beneficiaries.
      In May 2005, Mrs. Kreppein was diagnosed with terminal brain cancer.
On July 28, 2005, Mrs. Kreppein moved from her marital home in New Orleans,
Louisiana to Baton Rouge in order to live with her mother.1 On July 29, 2005,
a withdrawal of approximately $140,000 was made from the Kreppeins’ joint
bank account in a Baton Rouge branch office. On or about that same day, Mr.
Kreppein was advised by Sullivan that an attorney purporting to represent Mrs.
Kreppein requested that the named beneficiary of Mrs. Kreppein’s life insurance
policy be changed.
      Although Mr. Kreppein felt that Mrs. Kreppein was mentally incompetent
and was not acting of her own accord, in order to protect his property, Mr.
Kreppein filed a petition for divorce in the Civil District Court for the Parish of


      1
       Mr. Kreppein claimed that Mrs. Kreppein was in fact “kidnapped” by Crane’s wife and
Luquette.

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                                   No. 08-30409

Orleans, State of Louisiana, on August 2, 2005. As part of the pleadings, Mr.
Kreppein included a proposed temporary restraining order, which was signed
and executed by the state court that same day. The temporary restraining order
prohibited Mrs. Kreppein from “alienating, encumbering, or disposing of any or
all of the assets of the community . . . or from changing the ownership and/or
beneficiaries of any policies of life insurance . . . .” A show-cause hearing was set
in the order for August 16, 2005, to determine whether a preliminary injunction
should be issued. The order was served on Mrs. Kreppein on August 12, 2005.
And, shortly thereafter, Mrs. Kreppein filed her own petition for divorce with the
same court.
      The August 16 show-cause date passed without a hearing; a preliminary
injunction never issued; a request for an extension of the temporary restraining
order was never made; and the hearing was never rescheduled. The reason for
inaction is in dispute. However, the undisputed record evidence at least shows
that: (1) on or about August 13, 2005, the Kreppeins’ respective attorneys
agreed to consolidate their cross-petitions for divorce into a single action and to
continue the August 16 hearing; (2) on August 17, 2005, Mrs. Kreppein’s
attorney both faxed and mailed Mr. Kreppein’s attorney a proposed motion for
consolidation and a continuance; and (3) the proposed motion was never filed
with the state court. Mr. Kreppein also offered evidence that his attorney did
not receive the mailed copy of the proposed motion until Friday, August 27,
2005, which was the last normal court day for a number of weeks because
Hurricane Katrina struck the New Orleans area on August 29, 2005.
      Meanwhile, on August 22, 2005, Mrs. Kreppein executed a “Policy Change
Form,” which purported to revoke all prior beneficiary designations and
designate her children, Crane and Luquette, as the primary beneficiaries of her
life insurance policy. First Colony acknowledged receipt on August 30, 2005. On



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                                       No. 08-30409

October 11, 2005—without any further action ever having been taken with
respect to the temporary restraining order—Mrs. Kreppein died.
       Following her death, First Colony received notices of proof of loss and
claims for insurance proceeds from both Crane and Luquette and Mr. Kreppein.
On December 27, 2005, therefore, it filed an interpleader action in federal
district court against Mr. Kreppein, Crane, and Luquette pursuant to Rule 22
of the Federal Rules of Civil Procedure to determine who was the rightful
beneficiary (or beneficiaries) under Mrs. Kreppein’s life insurance policy. First
Colony alleged that it was “a mere stakeholder” with “no beneficial interest in
the death benefits” and that it could not “make payment of the death benefits
without incurring the risk of” multiple adverse judgments.
       Upon order of the district court, on January 17, 2006, First Colony
deposited the insurance proceeds into the court’s registry. On January 23, 2006,
Crane and Luquette filed their joint answer and counterclaims, and on
January 30, 2006, Mr. Kreppein filed his answer and counterclaims. Thereafter,
First Colony moved for summary judgment, which was granted in part (with
respect to liability) on January 25, 2006.2
       On April 25, 2007, Mr. Kreppein sought to amend his pleadings. In his
proposed counterclaims, Mr. Kreppein alleged that he was entitled to the
insurance proceeds from Mrs. Kreppein’s life insurance policy because Mrs.
Kreppein was enjoined by the state court’s temporary restraining order from
changing the beneficiary designation.              In addition, for the first time, Mr.
Kreppein claimed that Mrs. Kreppein’s attempt to amend the beneficiary
designation was null and void because she lacked mental capacity at the time
and because she had entered into a mutually reciprocal agreement with him not


       2
         The district court refused to award attorneys’ fees and costs, although it later did so
after additional briefing. A judgment dismissing First Colony was not entered until the final
judgment was issued on March 20, 2008.

                                               4
                                       No. 08-30409

to alter the beneficiary designations in their respective life insurance policies.
Lastly, Mr. Kreppein sought to assert cross claims against Crane and Luquette
and third-party claims against Mrs. Kreppein’s mother and attorney.
       On May 11, 2007, Crane and Luquette and Mr. Kreppein filed cross-
motions for summary judgment. In their motion for summary judgment, Crane
and Luquette also moved to strike Mr. Kreppein’s amended cross claims and
third-party claims. On June 25, 2007, the district court granted their motion to
strike in part and granted Mr. Kreppein’s motion to amend in part. Specifically,
the district court struck Mr. Kreppein’s proposed cross claims and third-party
claims, but permitted the amendment of Mr. Kreppein’s counterclaims. The
district held that the case was limited to the: (1) question of Mrs. Kreppein’s
mental capacity on the day she executed the Policy Change Form; and (2) effect
on Mrs. Kreppein’s change of the beneficiary designation of both the state court’s
temporary restraining order and the Kreppeins’ alleged, mutually reciprocal
contract.
       On August 24, 2007, the district court entered summary judgment for
Crane and Luquette. The district found that Mrs. Kreppein was mentally
competent at the time she changed the beneficiary designation, the state court’s
temporary restraining order was not in effect at that time, and the Kreppeins
did not have a mutually reciprocal agreement with respect to their life insurance
policies.    On March 20, 2008, the district court denied a motion for
reconsideration filed by Mr. Kreppein and entered final judgment against him.
       Mr. Kreppein then filed a timely notice of appeal.3 He raises three issues,
namely, whether: (1) the state court’s temporary restraining order rendered


       3
         Mr. Kreppein’s notice of appeal includes the judgment in favor of First Colony. First
Colony filed a brief with this court arguing that Mr. Kreppein waived any of his potential
arguments against it by failing to raise them in his initial brief. Mr. Kreppein did not respond
in his reply brief. We therefore agree with First Colony. See Green v. State Bar of Tex., 27
F.3d 1083, 1089 (5th Cir. 1994) (citation omitted).

                                               5
                                  No. 08-30409

Mrs. Kreppein’s change of beneficiaries null and void; (2) Mrs. Kreppein lacked
the capacity to change the beneficiary designation because she had a mutually
reciprocal contract with Mr. Kreppein; and (3) the state court’s temporary
restraining order was res judicata.
                               II. DISCUSSION
A. Standard of Review
      We review a grant of summary judgment de novo, viewing all the evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000) (citations omitted). Summary judgment is proper
when the evidence reflects no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Crawford, 234 F.3d at 902 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Even if we do not
agree with the reasons given by the district court to support summary judgment,
we may affirm the district court’s ruling on any grounds supported by the
record.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citation
and internal quotation marks omitted).
B. The Temporary Restraining Order
      Mr. Kreppein argues that Mrs. Kreppein’s attempt to change the
beneficiary designation of her life insurance policy violated the express terms of
the state court’s temporary restraining order. He asserts that the temporary
restraining order was legally valid when executed and that it remained in full
force and effect throughout the divorce proceedings—under article 3604(B) of the
Louisiana Code of Civil Procedure—because the Kreppeins agreed to a
continuance of the August 16 show-cause hearing. Mr. Kreppein claims that the
continuance was requested by Mrs. Kreppein’s attorney and that the state court

                                         6
                                       No. 08-30409

agreed to remove the scheduled hearing from its calendar, although it would not
set a new date until pleadings were filed. Finally, because Mrs. Kreppein failed
to contest the temporary restraining order’s validity and Louisiana law does not
favor self help, Mr. Kreppein contends that the temporary restraining order
“prevented [Mrs.] Kreppein from having the requisite legal capacity to effect a
change of beneficiary, so her signature on the change form was a legal nullity.”
       We agree with the district court that the temporary restraining order
expired before Mrs. Kreppein executed the Policy Change Form on August 22,
2005. Under Louisiana law, a temporary restraining order expires on its own
terms within such time as the court prescribes. LA. CODE CIV. PROC. ANN. art.
3604(A). Ordinarily, the state court may not fix a time that exceeds ten days.4
See id. However, “a temporary restraining order issued in conjunction with a
rule to show cause for a preliminary injunction prohibiting a spouse from . . .
[d]isposing of or encumbering community property . . . shall remain in force until
a hearing is held on the rule for the preliminary injunction.” LA. CODE CIV.
PROC. ANN. art. 3604(B).
       In such instances, “the application for a preliminary injunction shall be
assigned for hearing at the earliest possible time . . . .” LA. CODE CIV. PROC. ANN.
art. 3606. And “[t]he party who obtains a temporary restraining order shall
proceed with the application for a preliminary injunction when it comes on for
hearing.” Id. (emphasis added). “If the party who obtains a TRO does not
proceed with the application for a preliminary injunction when it comes on for
hearing, then the court is required to dissolve the TRO.” Lewis v. Adams, 679



       4
         Crane and Luquette argue that article 3604(A)’s ten-day limit applied to the state
court’s temporary restraining order in this case because life insurance proceeds are not
community property. We note that this conclusion is seemingly at odds with the schedule the
state court set because the temporary restraining order would have expired before the August
16 hearing. However, we need not resolve the issue because we conclude that the temporary
restraining order would have expired before August 22 under either article 3604(A) or 3604(B).

                                              7
                                       No. 08-30409

So. 2d 493, 496 (La. Ct. App. 1996) (citation omitted); see also Powell v. Cox, 83
So. 2d 908, 910 (La. 1955) (“[A] temporary restraining order . . . ceases to exist
and its legal effectiveness is of no moment as of the date of the hearing of the
rule nisi for either the granting or refusing of a preliminary injunction.”); Austin
v. Currie, 134 So. 723, 724–25 (La. Ct. App. 1931) (holding that a temporary
restraining order expired on the day it was set for hearing because nothing in
the record indicated that it was continued even though the parties proceeded to
trial on the theory that there was an injunction in force).
       In this case, the August 16 hearing to show cause why a preliminary
injunction should be issued passed without any attempt by Mr. Kreppein to
prosecute his application. Nor did the state court continue the August 16
hearing.5 Mrs. Kreppein’s attorney stated in her affidavit that on August 15,
2005, Meghan Hinyub, her legal assistant, “called the [c]ourt to reschedule the
August 16[] hearing and was unable to obtain a new date for the hearing since
the Motion to Continue had not yet been filed.” Hinyub submitted an affidavit
stating that she called the state court and that, although she “was unable to
obtain a new date for the hearing since the Motion to Continue had not yet been
filed[,]” she “was informed that, once the Motions had been filed, then a new date
would be set.” According to Hinyub’s contemporaneous notes, it was the “clerk”



       5
         We also note that the summary judgment evidence does not support Mr. Kreppein’s
assertion that Mrs. Kreppein sought a continuance. Mr. Kreppein’s attorney did not swear in
her affidavit that Mrs. Kreppein requested the continuance. Rather, she testified that during
an August 13, 2005, telephone conversation with Mrs. Kreppein’s attorney she said she “would
not object to a continuance of the Rules previously set for hearing on August 16, 2005.” On the
other hand, there is evidence that Mr. Kreppein’s attorney sought the continuance because his
attorney mistakenly believed that Mrs. Kreppein had not been served. On August 15, 2005,
a legal assistant for Mr. Kreppein’s attorney noted in the firm’s “online organization system”
that “I spoke with the Sheriff’s office to see if M[r]s. Kreppein has been served. She has not
been served and there was no problem. I spoke with Mr. Kreppein and told him that there
would be no court tomorrow because she had not been served.” An earlier notation that same
day stated that if Mrs. Kreppein had not been served a motion for continuance should be filed.


                                              8
                                       No. 08-30409

of court with whom she spoke, not the state court. Regardless, Mr. Kreppein
never filed a motion for continuance seeking a new hearing date. And the state
court never entered an order before (or even after) the August 16 hearing
continuing the hearing to a later date. Accordingly, the temporary restraining
order was not in effect when Mrs. Kreppein later changed her beneficiary
designation.6
C. The Mutually Reciprocal Contract
         Mr. Kreppein argues that Mrs. Kreppein “contracted away her right to
change the insurance beneficiary when she entered into a bilateral contract for
reciprocal insurance policies with [him].” In support of the alleged existence of
such a contract, Mr. Kreppein relies on his own affidavit testimony that: “[Mrs.
Kreppein] and I specifically agreed that the proceeds of the respective policies
would reciprocally ensure each the other, in the event of death, . . . and that
there would be no change regarding the insurance policies or beneficiaries.” He
also attempts to rely upon Sullivan’s affidavit; the most relevant statement
therein consisting of the comment that Mr. Kreppein “indicated that he and
[Mrs. Kreppein] wanted to discuss obtaining life insurance policies that would
protect each of them in the event of the death of the other.” Mr. Kreppein
neither submitted a copy of the alleged agreement nor alleged that the contract
was in writing. Based solely on the affidavits described above and without
citation to any legal authority, Mr. Kreppein argues that the alleged contract
prevented Mrs. Kreppein from validly changing her beneficiary designation
because one cannot “validly twice sell a car or a property after it has been sold
once.”


         6
         Our decision that the temporary restraining order expired necessarily means that it
was not entitled to res judicata effect. See LA. REV. STAT. ANN. § 13:4232(B) (providing that
judgments resulting from an action for divorce only have res judicata effect as to causes
actually adjudicated); Assocs. Fin. Servs. of Am., Inc. v. Rogell, 449 So. 2d 526, 528 (La. Ct.
App. 1984).

                                              9
                                  No. 08-30409

      We need not consider whether the district court properly found that Mr.
Kreppein failed to raise a genuine fact issue concerning the existence of a
mutually reciprocal agreement because we agree with Crane and Luquette that
Mr. Kreppein has not demonstrated that such a contract would alter the
outcome of this case.     Under Louisiana law, life insurance proceeds are
considered “sui generis and therefore not subject to many traditional civilian
principles.” Fowler v. Fowler, 861 So. 2d 181, 183 (La. 2003) (explaining that the
Louisiana Code of 1808 provided that insurance was foreign to the code because
insurance contracts derived from common law countries and were considered a
form of gambling under the French Civil Code (citation omitted)). “[T]he
principle that life insurance proceeds are sui generis has led Louisiana courts for
decades to look to the provisions of the policies themselves and any pertinent
portions of the Insurance Code to resolve disputes concerning such policies.” Id.
at 185. The rules of contract also provide a basis for the protection of life
insurance proceeds because the insurance contracts are generally interpreted as
ordinary contracts. See id. But if nothing in the laws of insurance or contract
control, the policy terms prevail. See Jackson Nat’l Life Ins. Co. v. Kennedy-
Fagan, 873 So. 2d 44, 50 (La. Ct. App. 2004).
      Here, Mrs. Kreppein’s insurance policy specifically provided that the
“Owner may change the designations of Owner, Contingent Owner, and
Beneficiary during the Insured’s lifetime. Any change is subject to the consent
of an irrevocable beneficiary.”     This is consistent with the notion under
Louisiana law that, “absent a conventional agreement, no one has the vested
right to the status of a beneficiary under a life insurance contract, if the
contingent event which vests such right, the death of the insured, has not
occurred. Until then, the parties to the insurance contract are free to change the
beneficiary, if such a change is permitted by its terms.” Id. at 49. Although Mrs.
Kreppein’s life insurance policy clearly vested Mrs. Kreppein with the right to

                                        10
                                  No. 08-30409

name an irrevocable beneficiary, nothing in the policy itself or the record in this
case suggests that she did so. Nor is there evidence that she assigned ownership
of the policy to Mr. Kreppein, which would have had the same effect. See
Kambur v. Kambur, 352 So. 2d 99, 103 n.4 (La. Ct. App. 1995) (citation omitted).
Indeed, Mr. Kreppein seeks to diminish these facts by arguing that nothing in
the record indicates that either he or Mrs. Kreppein was aware of such options.
      Mr. Kreppein would have us overlook the plain meaning of the insurance
policy based on the alleged existence of another contract Mrs. Kreppein entered
into with a third party. He provides no legal authority for this argument. See
Jackson Nat’l Life Ins. Co., 873 So. 2d at 50 (“Louisiana [law] simply does not
address this situation; it is therefore governed by the policy terms, which
constitute the law between the parties.”). And he does not respond to Crane and
Luquette’s contention that his allegations amount to no more than a potential
breach of contract claim against Mrs. Kreppein’s estate. See id. (holding that
while a wife’s succession may have claims against a husband’s succession arising
from a life insurance policy, the policy proceeds must be disbursed in accord with
the policy language). Because Crane and Luquette were the named beneficiaries
and nothing in Mrs. Kreppein’s insurance policy indicates that she lacked legal
capacity to change the beneficiary designation, the district court correctly
awarded the proceeds to Crane and Luquette. See Fowler, 861 So. 2d at 186
(“[T]he beneficiary is a named individual. Thus, the right to ownership of the
proceeds should devolve in accordance with the contract provisions which are
clear and unambiguous.”).
                              III. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s judgment.




                                        11
