     Case: 19-60176      Document: 00515408469         Page: 1    Date Filed: 05/07/2020




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

                                                                              FILED
                                                                            May 7, 2020
                                      No. 19-60176
                                                                           Lyle W. Cayce
                                                                                Clerk

ELIZABETH L. STRICKLAND; THE ELIZABETH LANCE BROOME
REVOCABLE TRUST,

               Plaintiffs - Appellants

v.

AMY ALYECE BROOME; USAA LIFE INSURANCE COMPANY,

               Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:16-CV-124


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
PER CURIAM:*
       This is a dispute about life insurance proceeds. Steve Broome and
Elizabeth Strickland got divorced. In their property settlement, Steve Broome
agreed to keep Strickland as his life insurance beneficiary, and eventually he
named Strickland’s trust as the recipient of his life insurance proceeds. When




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 19-60176
he died in 2013, Steve Broome was married to Amy Broome. USAA, his life
insurer, paid the policy proceeds to Amy Broome instead of Strickland.
      Strickland sued USAA and Amy Broome. The district court dismissed
Strickland’s claims against USAA for breach of fiduciary duty and constructive
trust, but held a trial on two claims against Broome: conversion and unjust
enrichment. The jury found for Amy Broome on the conversion claim, but the
court found for Strickland on the unjust enrichment claim. The court entered
judgment and ordered Amy Broome to pay Strickland $339,912.27 for unjustly
receiving Steve Broome’s life insurance. Strickland moved for judgment as a
matter of law, or for a new trial, on the conversion claim; the district court
denied the motions. Strickland appeals.
      Strickland argues the district court erred in several of its decisions
with respect to her claims against USAA and Amy Broome. Her
arguments are unavailing and we therefore affirm the district court.
      Strickland argues her four state-law claims against USAA should
not have been dismissed. We review the district court’s dismissal of
each de novo. In order to survive a motion to dismiss, Strickland’s
complaint “must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation omitted).
      Strickland first argues that USAA owed her a fiduciary duty. But
this claim lacks merit because the Mississippi Supreme Court has held
that “the severity of the burdens and penalties integral to a fiduciary
relationship    should    not   apply       to   ordinary    insurance      policy
transactions.” Robley v. Blue Cross/Blue Shield of Miss., 935 So. 2d 990,
996 (Miss. 2006). It takes “more” to create a fiduciary relationship. Id.;
see, e.g., Lowery v. Guar. Bank & Tr. Co., 592 So. 2d 79, 83–85 (Miss.
1991). Yet Strickland does not allege that her relationship with USAA
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                                No. 19-60176
was anything “more” than an “ordinary insurance…transaction.”
Because Strickland’s complaint is devoid of any allegations that take
her relationship with USAA outside the realm of “ordinary insurance
policy transactions,” the fiduciary claim was properly dismissed.
      Second, Strickland sought to hold USAA liable for disbursing the
insurance proceeds to Amy Broome through a constructive trust. The
district court dismissed this claim for want of two necessary elements:
that USAA holds the proceeds and that Strickland was in a
“confidential relationship” with USAA. We agree that dismissal was
proper. A Mississippi constructive trust claim requires, among other
things, that the defendant hold or possess property to which plaintiff “is
rightfully entitled.” Allred v. Fairchild, 785 So. 2d 1064, 1067–68 (Miss.
2001). Since USAA no longer possessed Steve Broome’s life insurance
proceeds when this lawsuit was filed, her constructive trust claim
necessarily fails. See First Nat’l Bank of Jackson v. Huff, 441 So. 2d
1317, 1321 (Miss. 1983) (stating that a “transfer of title” before the
plaintiff filed suit “precludes the imposition of a constructive trust”).
      Third, Strickland says her complaint also included breach of
contract and conversion claims against USAA. But our review of her
complaint indicates she barely adverted to these claims, if at all. Such
“threadbare” allegations, devoid of “factual enhancement” of any kind,
are not sufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678.
      Finally, Strickland says she was entitled to judgment as a matter of law
on her conversion claim because insufficient evidence supported the jury’s
verdict in Amy Broome’s favor. See Carley v. Crest Pumping Techs., LLC, 890
F.3d 575, 578 (5th Cir. 2018). While we review the district court’s decision to
deny judgment as a matter of law de novo, our review is limited. Seibert v.
Jackson Cty., Miss., 851 F.3d 430, 436 (5th Cir. 2017). As an appeals court,
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we are “especially deferential” to the jury, Carley, 890 F.3d at 578, and we
will not reassess “credibility of witnesses [or the] weight of the evidence.”
Montano v. Orange Cty., Tex., 842 F.3d 865, 873 (5th Cir. 2016). Those
decisions remain the “sole province of the jury.” Id.
     The sole issue in dispute at trial was whether Steve Broome changed
his beneficiary to Amy Broome before he died. As the parties litigated
below, if Steve Broome did make the change, Strickland’s conversion claim
could not prevail. But if Steve Broome never made that change and Amy
Broome still got the proceeds, then Strickland would be entitled to
judgment in her favor. On appeal, Strickland argues there was no evidence
showing Steve Broome made the change—therefore, Strickland says the
jury needed to find for her.
     We disagree. The jury had some evidence from which it could infer
that Steve Broome did, in fact, change his beneficiary to Amy Broome.
Discovery produced screenshots from USAA’s files in both 2013 and 2017
showing that USAA had recorded Amy Broome as the proper life insurance
beneficiary at Steve Broome’s death. One reasonable inference from this
evidence is that Steve Broome contacted USAA and changed the
beneficiary before his death. The jury also heard testimony from Amy
Broome, who testified that she did not change the insurance policy herself
and that she did not know whether her husband had done so. The jury could
have heard this testimony and decided that Steve Broome had, in fact,
affirmatively changed the policy for Amy Broome’s benefit, despite her lack
of knowledge. We cannot reweigh the import of the USAA screenshots or
make a new assessment of Amy Broome’s testimony and credibility to order
judgment as a matter of law. Montano, 842 F.3d at 873. Accordingly, the
district court did not err in denying Strickland’s motion.


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                               No. 19-60176
     Finally, even if she is not entitled to judgment as a matter of law,
Strickland says she was entitled to a new trial on her conversion claim
against Amy Broome. We review a trial court’s decision on a motion for
a new trial for an abuse of discretion. Seibert, 851 F.3d at 438. When a
party, like Strickland, argues for a “new trial on evidentiary grounds,”
she must show that there is an “absolute absence of evidence to support
the jury's verdict.” Id. at 438–39. But, as our discussion above indicates,
there was some evidence to support the verdict. And Strickland has not
pointed to a non-evidentiary basis for a new trial. Id. Accordingly, the
district court did not abuse its discretion in denying this motion.
     AFFIRMED




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