                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                          April 19, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                              No. 04-10649
                            Summary Calendar



                             OLIVIA GIBSON,

                          Plaintiff-Appellant,

                                   versus

                          LIBERTY MUTUAL GROUP

                           Defendant-Appellee.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:02-CV-2306-D
                        --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     The   plaintiff,    Olivia    Gibson,   appeals     from   the    district

court’s granting of summary judgment to the defendant, Liberty

Mutual Group.    Finding no error, we AFFIRM.

     The   plaintiff    filed     suit   against   the    defendant     raising

contractual     and    extracontractual      claims      arising      from    the

defendant’s refusal to pay a theft loss claim made under a home

owner’s insurance policy.          The defendant removed the case to

federal court and moved for summary judgment, contending that the


     *
       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this opinion should not be published and is not precedent except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. 04-10397
                                  -2-

record established that the theft was committed by the plaintiff’s

estranged husband, Jared Harris, a named insured, and thus excluded

from coverage.   The district court granted the motion and the

plaintiff timely appealed.

     We review a district court's decision to grant or deny summary

judgment de novo, applying the same legal standards as the district

court.   Foster Wheeler Energy Corp. v. An Ning Jiang MV, 383 F.3d

349, 354 (5th Cir. 2004).      Summary judgment is proper if, when

viewing the evidence in the light most favorable to the nonmoving

party, the record indicates that there is "no genuine issue of

material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c).

     The plaintiff appears to argue on appeal that (1) Harris was

not a named insured, and (2) the defendant has not established that

Harris committed the theft.    The declaration page of the insurance

policy at issue shows that Harris was a named insured from November

1998 to November 1999, the period in which the loss occurred.   The

plaintiff claims that the defendant improperly added Harris to the

insurance policy without her knowledge or consent.         The only

evidence supporting the plaintiff’s assertion is an affidavit from

her son, Bennie Gibson, stating that he “learned that on November

4, 1998, [Harris] called [the defendant] and added himself as a

listed insured, over the phone, to my mother’s homeowner’s policy.

These changes were made without any verbal or written instruction,

approval, or signature from my mother. [Harris] did not have the
                               No. 04-10397
                                    -3-

legal capacity at the time to make such changes to my mother’s

policy.”    The district court properly struck this portion of the

affidavit because it contains legal conclusions and hearsay and was

not based upon Bennie’s personal knowledge.            See Fed. R. Civ. P.

56(e), Fed. R. Evid. 802, 701.        Accordingly, there is no evidence

supporting the plaintiff’s claim that Harris was improperly added

to the insurance policy.

     The insurance policy at issue insures against a loss due to a

“[t]heft, including attempted theft and loss of property from a

known place when it is likely that the property has been stolen[,]”

but it does not cover a “loss caused by theft . . . [c]ommitted by

an insured.”     The district court relied on the following evidence

in concluding that the theft for which the claim was submitted was

committed by Harris: (1) Bennie’s sworn petition, filed in Oklahoma

District Court, in which he averred that he should be appointed the

plaintiff’s guardian because, among other reasons, Harris “removed

all of [the plaintiff’s] personal property and jewelry valued at

over $5,000", and (2) the plaintiff’s assertion in her original

petition    in   this   case   that   she   “brought    a   claim   to   [the

defendant’s] attention, claiming that approximately $35,000 of her

personal property had been stolen and/or converted by Mr. Jared

Harris.”1




     1
        The plaintiff initiated her case in the Texas courts.
Accordingly, she filed an “original petition” rather than an
“original complaint.”
                              No. 04-10397
                                   -4-

     The plaintiff argues that the district court should not have

relied    upon   Bennie’s   sworn   petition   because   it   was   somehow

“incomplete”.      The petition was signed by Bennie, under oath,

notarized and submitted to the court.      Accordingly, we fail to see

how the petition is incomplete.         Furthermore, the plaintiff is

bound by the admission in her original petition in this case that

Harris was responsible for the theft for which she submitted a

claim.     We find no error in the district court’s opinion.2

         The judgment of the district court is thus AFFIRMED.

     AFFIRMED; MOTION TO VACATE ORDER AND MEMORANDUM OPINION,

MOTION TO REMAND AND REVERSE DECISION AND WAIVER OF APPELLATE

BRIEF, AND MOTION FOR SANCTIONS AND COSTS DENIED.




     2
       The plaintiff has filed the following motions: (1) Motion
to Vacate Order and Memorandum Opinion, (2) Motion to Remand and
Reverse Decision and Waiver of Appellate Brief, and (3) Motion
for Sanctions and Costs. Because we find no error in the
district court’s opinion, we also find no merit to any of the
plaintiff’s motions.
