IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-10859 Summary Calendar _______________

METROPOLITAN LIFE INSURANCE CO.,

Plaintiff,

VERSUS

RICHARD E. COUCH, SR.,

Defendant-Appellant,

VERSUS

CHAD J. BURGESS AND KYLI A. COUCH,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Northern District of Texas _________________________

January 31, 2002

Before JONES, SMITH, and PER CURIAM:* EMILIO M. GARZA, Circuit Judges.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. IV. Richard Couch killed his wife in November Couch contends he cannot be deprived of 1997 and pleaded guilty of involuntary his right to collect on the policy because he manslaughter. In October 2000, Metropolitan was not convicted of intentional homicide. Life Insurance Company (“Metropolitan”) Under Texas law, a life insurance beneficiary sued in interpleader to clarify its obligation to forfeits his rights only if he is a principal or pay benefits because of Martha’s death. accomplice in willfully bringing about the Martha’s children, Kyli Couch and Chad death of the insured. TEX. INS. CODE ANN. Burgess, claimed that under Texas law, they art. 21.23 (Vernon Supp. 2001). Couch was were entitled to Richard’s share because he convicted only of involuntary manslaughter. had forfeited it by killing Martha. This, however, is not ground for reversal. The district court granted summary “[I]t is settled law” in Texas “that the judgment in favor of the children, and Richard judgment in the criminal case [is] not binding appeals pro se. Finding no error, we affirm. upon the court in the civil proceeding.” Bounds v. Caudle,

(Tex. II. 1977). This principle is “particularly We review a summary judgment de novo applicable here where the conviction was under the same standard applied by the district based upon plea bargaining.”

court. King v. Ames,

(5th Cir. 1999). The record is reviewed in the light V. most favorable to the nonmoving party, and Couch argues that the district court the movant is required to “demonstrate that improperly admitted five affidavits submitted there are no genuine issues of material fact.” by the children because they were not “sworn

statements” admissible under FED. R. CIV. P. 56. To the contrary, all five were sworn to be III. “true and correct” before a notary public and Couch argues that the claim is prescribed, are proper summary judgment evidence under because in Texas, a wrongful death action FED. R. CIV. P. 56(e). Cf. Nissho-Iwai Am. must be filed within two years after accrual. Corp. v. Kline,

(5th TEX. CIV. PRAC. & REM. CODE ANN. Cir. 1988) (finding that a notarized affidavit § 16.0003(b) (Vernon 1986). This is not a was not admissible as summary judgment evi- wrongful death claim, however, but a dispute dence under rule 56(e), but only because it over contractual entitlements to insurance pay- was “neither sworn nor its contents stated to ments. In Texas, “a breach of contract claim be true and correct nor stated under penalty of is governed by a four-year limitation period.” perjury”). Kan. Reinsurance Co. v. Congressional Mort. Corp.,

(5th Cir. 1994) The summary judgment is AFFIRMED. All (citing TEX. CIV. PRAC. & REM. CODE ANN. § pending motions are DENIED. 16.0004 (Vernon 1986)). Thus, there is no doubt that the claims were timely filed, because Metropolitan initiated this litigation well within the allotted four-year period.

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