### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30663

NEW YORK LIFE INSURANCE & ANNUITY CORP., Plaintiff-Appellee
v. CYNTHIA DUFOUR CANNATELLA, Defendant-Appellee
v. DIANA PEREZ CANNATELLA, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:11-CV-1431

Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * New York L i fe Insurance and Annuity Company (“New York Life”) initiated the present interpleader action because Diane P e rez Cannatella (“Dia n e ” ) and Cynthia Cannatella Watermeier (“Cynthia”) both claimed the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 23, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30663 Document: 00512480108 Page: 1 Date Filed: 12/23/2013No. 12-30663

proceeds from Anthony Cannatella Sr.’s (“Anthony”) l ife insurance p olicy. 1 The district court denied D iane’s motion f or summary judgment, granted summary judgment in favor of Cynthia, declined to stay the case pending the o utcome of state court litigation concerning the community property p a rt ition between Anthony and Cynthia, and o rdered that the i n surance proceeds be paid to Cynthia. The district court also o rdered D iane to pay $ 750 in attorney’s fees to New York Life. Diane now appeals. We AFFIRM the district court’s orders.

I. FACTS AND PROCEDURAL HISTORY Anthony and Cynthia Cannatella married in 1981. On May 24, 2000, they applied for a u niversal life insurance poli c y w i t h New York Life, naming Anthony as policy owner. Anthony el e c ted $250,000 in death benefits, which

w ould be paid to the named beneficiary upon his death. T he policy nam e d Cynthia as primary ben e f i c i ary and their son, Andrew Cannatella, as second beneficiary. New York Life issued the policy on June 14, 2000. On May 12, 2010, Cynthia filed a petition f or divorce against Anthony in Louisiana s t a t e c ourt. Also on May 1 2, 2010, Cynthia obtained a temporary restraining or d e r “ restraining and enjoining Anthony Wayne Cannatella, Sr., [ from] alienating, disposing of, encumbering or t ransferring any of the community owned property, belonging t o [him] and p e t i t i oner, a nd from changing a ny beneficiary designation a g a i nst any community owned policies and/or accoun t s . ” On June 15, 2010, the state court granted an interim judgment in the divorce proceeding, which in pertinent p art t ran s f o r m e d the temporary restraining order into a preliminary injunction and m ade it mutual against Cynthia a nd Anthony. As a result, b oth C ynthia and Anthony were restrained and enjoined f rom changing any benefici a r y d e s ignations for any

1 Becaus e the p arties bear the s am e s urnam es , w e ref er to them by their f

irs t nam es f or eas e of ref

erence. 2 Case: 12-30663 Document: 00512480108 Page: 2 Date Filed: 12/23/2013No. 12-30663

community o wned property. The i n j u n c ti o n s p e c if

i c ally a p p lied “to life insurance policies and beneficiaries thereto.” On September 2 7, 2010, Cynthia’s attorney sent New York Life a copy of the May 12, 2010 temporary r estraining order and the June 1 5, 2 010 injunction order. On November 10, 2010, the court granted a judgment of divorce between Cynthia and Anthony. On November 28, 2010, New York Life received a “Change of B eneficiary Request” from Anthony, r equesting that Diane be designated f irst beneficiary of his insurance policy. In response , o n D e c e mber 17, 2 010, N ew York Life informed Anthony in writing that it had received the request but that it “was unable to process [the] request because additional documentation i s required.” In the same letter, a New York Life agent explained that “ [i]n order to process your req u e s t, I will need court d ocumentation to show that the current restraining order dated May 11, 2010 h as been lifted and a copy of the final divorce d ecree to s how there are no longer any restrictions o n changing the beneficiary on t h e above policy.” The letter explained that the request for a policy change c ould be process e d once those documents were received, but expressly stated: “Until then, our recor d s will remain unchanged.” Anthony never supplied New York Life with the requested documentation. The state court entered the judgment of divorce of Anthony and Cynthia

on December 1, 2010. O n December 7, 2010, Anthony and Diane married. Anthony died shortly thereafter, on December 31, 2010. On February 9, 2011, New York Life r eceived Cynthia’s claim for death benefits under Anthony’s policy. New York Life then received D iane’s claim for d eath benefits u n der the policy on February 16, 2011. After receiving c onflicting information from Diane

a n d Cynthia regarding the injunction and status of the divorce proceedings, New York L i f

e filed its Complaint f or Interpleader, Declaratory Judgment, and Injunctive Relief in the U.S. District Court f or the Eastern District of L ouisiana

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on June 1 7, 2011, n aming Cynthia and Diane as defendants. The court granted New York Life leave to deposit the death benefits of $250,000 plus i nterest into the registry of the court. On July 5, 2011, New York Life deposited $254,458.90 into the court’s registry, represe n t i n g the total death benefits payable under Anthony’s policy, plus interest from the date of his death. Thereafter, N ew York Life filed a motion for injunctive relief, declaratory judgment, and dismissal f rom the suit. The district c ourt granted th e m o t i o n, d i s missed New York Life from the suit, and permanently enjoined the defendants from instituting action against New York Life in any state o r federal court relating to the payment of death proceeds u nder Anthony’s universal life insurance policy. T h e district court a lso granted N ew York Life $750 in attorney’s fees for having to resp o n d t o Diane’s memorandum in opposition to New York Life’s motion to dismiss, and ordered Diane to pay the fees. On September 29, 2011, Diane filed a motion f or summary judgment, asserting her entitlement to the policy proceeds. The district court denied the motion o n February 16, 2012. Subsequently, Cynthia filed a motion for
summary judgment, asserting her entitlement to the p roce e d s . T h e district court granted the motion on June 7, 2012. Diane now appeals. II. STANDARD OF REVIEW W e review the district court’s grant o f summary j udgment de no v o , applying the same s tandard as the district court. A d d i c k s Servs., Inc. v. GGPB r i d ge land, LP, 596 F.3d 286, 293 (5th Cir. 2010). Summary j udgmen t i s appropriate if the record shows that “there is no genuine di spute as to any material fact and the movant is entitled t o judgment as a matter of law.” F E D

. R. C I V

. P. 56(a). The moving party bears the burden o f d e monstrating that
summary judgment is appropriate. C elotex Corp. v. Catrett , 477 U.S. 3 17, 323 (1986). We examine the evidence in the light most favorable to the nonmoving party. Addicks Servs. , 596 F.3d at 293.

4 Case: 12-30663 Document: 00512480108 Page: 4 Date Filed: 12/23/2013No. 12-30663 III. DISCUSSION A. Because we s it in diversity, under the Erie doctrine we apply the substantive law o f L ouisiana. Forado r i v . Harris , 5 23 F.3d 477, 486 (5th Cir. 2008); see Erie R.R. Co. v . Tompkins , 304 U.S. 64, 78 (1938). Under Louisiana law, the p roceeds o f life insurance, if payable to a named beneficiary o ther than the estate of the insured, are sui generis a nd not c onsidered to be part of the estate of the insured. T. L. James & Co., Inc. v. Montgomery , 332 So. 2d 834, 847 (La. 1975). “They do not come into existence du ring [the insured’s] life, never belong t o him, and pass by virtue of th e contractual agreement between the insured a nd the insurer to the named beneficiary.” I d .; see also Fowler v. Fowler , 2003-0590, p. 1-5 (La. 12/12/03); 861 S o. 2 d 1 8 1 , 1 8 2-84 (explaining that in Louisiana, “life insurance proceeds a r e s u i g eneris a nd not governed b y codal principles which govern community property”). Th u s , life insurance proceeds payable to the insured’s spouse as the named b e n e f i c iary are not part of a married couple’s community p roperty, are not “subject to the Civil Code articles relating to

. . . community c laims[,]” and a re not subj e c t t o division in divorce proceedings. Id. (quo t i n g T

. L

. J a mes , 332 So. 2d at 847); see also Kambur v. Kambur , 94-775, p. 6 (La. App. 5 Cir. 3/1/95); 652 So. 2d 99, 103. Rather, “the proceeds

. . . are e xclusively owned by the named b eneficiary.” Allianz Life Ins. Co. of N. A. v. Oates , 33,045, p .1 (La. App. 2 Cir. 4/5/00); 756 So. 2d 677, 679; see also Sta n da r d Life Ins. Co. of S. v. Franks , 278 So. 2d 112, 1 14 (La. 1973); Katherine S. Spaht & Richard D. Moreno, 16 Louisiana C iv il Law T reatise, Matrimonial Regimes § 3.32, at 187 (3d ed. 2 007) (“The proceeds of a policy paid
upon the death of the insured go to the beneficiary o f the policy without regard to community property concerns.” (emphasis in o riginal)); Wi l liam Shelby McKenzie & H. Alston Johnson III, 15 Louisiana Civil Law Treatise, Insurance Law and Practice § 8:1 3 , at 849–53 (4th ed. 2012) (“[T]he p r oceeds themselves

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a r e payable to the properly designated b eneficiary and form no part o f t h e community . . . .”). On the other hand, a life insurance policy itself (including the certificate of insurance and the policy’s cash surrender v alue) may become subject to accounting f

o r community property purposes. See T. L. James & Co., 332 So. 2d at 842–43, 847 (discussing Messersmith v. Messersmith , 86 S o. 2d 169 (La. 1956), and Butler v. Butler , 7785 (La. App. 1 Cir. 11/17/69); 228 S o . 2d 339)

. “In Louisiana law, things in possession of a spouse during the existence of the legal regime a re presumed to be community,

. . . [and therefore] we presume that [a] life i n surance policy [purchased during the marri a ge of the i nsured] was community p roperty and that Louisiana community property principles apply.” USAA Life Ins. Co. v . Krake , 08-775, p. 5 (La. App. 5 Cir. 3 /24/09); 7 S o. 3d 78, 82 (emphasis added); see also Talbot v. Talbot , 2 003-0814, p. 19 (La. 12/12/03); 864 So. 2d 590, 604; Kambur , 652 So. 2d at 103; Spa h t & M o reno, supra § 4.1, at 308 (discu s s i ng the rebuttable presumption that property obtained and possessed during the e xistence of the m arriage is community owned). Therefore, the cash surrender value of a life insurance p o licy procured du ring m arriage is subject to divisio n upon termination of a community b y divorce. Spaht & Moreno, supra§ 3.32, at 191. Because Anthony p urchased his life insurance policy during the existence of the legal regime of his marriage to Cynthia, the policy itself, as distinct from its proceeds, is p resumed to be community property. Kambur , 652 S o. 2d at 103. As community property, the cash surrender value, if any, of the life insurance policy was subject to partition in a divorce proceeding, T albot , 864 So. 2d at 604, and likewise, was p roperly governed by the state court’s t emporary restraining order and injunction, which also explicitly prohibited both Anthony and Cynthia from c hanging any benefic i a r y designation against any community owned policies

. See, e .g. , USAA Life , 7 So. 3d at 83, 85 (holding that the trial c ourt did

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n o t abuse its discretion in f inding that a t emporary restraining ord e r a n d i nj u n c t ion with the purpose of “maintain[ing] the status quo u ntil remainin g community property issues could be resolved[,]” prevented the insured from changing the beneficiary on his life insurance policy). Diane asserts on appeal that Anthony’s attempted change of beneficiary

on h is life insurance policy should be given effect because d e ath benefit proceeds

are not community property, and as such the state court’s restraining order and injunction d i d n o t e ffect the p roceeds of the life insurance policy. Thus, Diane contends that the injunction does not void Anthony’s efforts to make Diane the primary beneficiary. 2 Diane’s argument proceeds on the incorrect assumption that Cynthia is seeking t o void a properly consummated c h ange of beneficiary. Diane’s a r gument fails because no such change of beneficiary actually occurred—Anthony did not succeed i n changing the be n e f iciary on his life insurance policy. New York Life’s communica t i on r egarding the status of the policy was unequivocal. It informed Anthony that it “was unable to process [his] request because additional documentation i s required.” It e xpressly stated that until it received the necessary documentation r egarding the i nj u n ction and divorce, i t s “ r e c ords [w ould] remain u nchanged.” Anthony n ever sent the

re q u ested documentation or otherwise c ontested New York Life’s decision to abide b y the injunction and not change th e policy. Therefore, Cynthia remained

2 I n m ak ing this a r g u m e n t , Diane relies on D a vi s v . Prudenti a l Insura nce Co. of A m eri ca , 331 F

. 2d 346 ( 5th Cir. 1964) , in w hich w e conclud ed that w here a d eced ent changed the benef

iciary on his lif

e ins urance p olicy in violation of a d ivorce p roceed ing injunction, the
m ere act of violating the injunction d oes not “void the p rohibited trans f er of p rop erty s o that the p arty in w hos e f

avor the injunction was is s ued has m erely to p lead and prove the f act of the injunction and of the trans f e r t o recover agains t a trans f eree. ” Id. at 349–50. In the p res ent cas e, we ap p ly the s ubs tantive law of Louis iana, see Bra dley v . A l lsta te Ins. Co. , 620 F. 3d 509, 516 n. 2 ( 5th Cir. 2010) , and recent Lou i s i a n a c a s e l a w s ugges ts that a change of benef iciaries m a y b e void w here the change violated an injunction agains t trans f erring, alienating, or d is pos ing of com m unity prop erty. See U SA A L if e , 7 So. 3d a t 8 5

. H o w ever, becaus e N ew York Lif e never changed the benef iciary on the p olicy, w e need not r e a c h t he is sue of w hether s uch a trans f er w ould have been void und er Louis iana law

.

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the primary beneficiary throughout the life of the p o l i c y and was s till the primary beneficiary at the time o f Anthony’s death, b ased on the clear, unambiguous language o f the life insuranc e policy contract. “When the words of a contract are clear a nd e xp l i c it and l ead to no absurd consequences, no further interpretation m ay be made in s earch of t h e p a r t i e s’ intent.” Smith v. Am. Family Life Assur. Co. of Col u m b u s , 5 8 4 F.3d 2 12, 216 ( 5th Cir. 2009) (citing La. Civ. Code Ann. art. 2046); see also Franks , 278 So. 2d at 1 14 (finding that where the insured did not change the beneficiary i n his life insurance policy contract , “ [ w ] e n eed not i nquire into whether h e desired t o change the benefi c i a ry, for we a re bound by the unambiguous contract which names the beneficiary”). Anthony was restricted by court order from changing the beneficiary t o whom the death proceeds would be paid. Anthony’s unsuccessful attempt to name Diane as the b eneficiary was i neffec t u a l. By the c lear and explicit language of th e contract between Anthony and New York Life, Cynthia was the named, primary beneficiary under th e policy when Anthony died, and thus the insura n c e p r o ceeds “passed by virtue of the contractual agreement be t ween the insured and the insurer to the named beneficiary.” Kambur , 652 So. 2d at 103. Diane also argues that Cynthia should receive only half of t h e cash surrender value of Anthony’s life insurance policy, c ontending that Cynthia only has a right to the value of the policy itself , and has no right to the proceeds

. She asserts that ha l f of the yet-undetermined cash value of the policy is “substantially l ess” than the approximately $2 5 0,000 which the district court awarded Cynthia. Diane’s argument relies on a misapplication of Louisiana law discussed supra , ignores the fact that New York Life n e v e r actually removed Cynthia as th e primary beneficiary under Anthony’s life i nsurance policy before the p roceeds became p ayable to C ynthia upon his death, and thus was p roperly rejected by the district court.

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In light of the clear language in the life insurance policy, naming Cynthia

as the beneficiary a t t h e time of Anthony’s death, Diane’s summary judgment evidence did not establish that she was entitled to th e proceeds. Therefore, the district court did not err in denying Diane’s motion for s u m m a ry judgment. Likewise, because Diane did not raise a genuine issue of material fact or error of law disputing that C y n thia was the n amed, primary beneficiary of the insurance policy, the d i s t rict court did not err in granting summary judgment in favor o f Cynthia or in directing the C lerk of the Court to pay her the f ull sum of the i n surance proceeds and accrued interest that New York Life deposited in the registry of the court. B. Diane also appeals the district court’s award o f $750 i n attorney’s fees to N e w Yo r k Life. T he a ward was limited to the costs associated with h aving to respond to Diane’s memora n d u m i n opposition to N ew York Life’s Motion to Dismiss, for Injunctive Relief, and for Declaratory Judgment. “A di strict court has the authority to a ward reasonable attorney’s fees in interpleader actions. T h e a w a rd of attorney’s fees is in the discretion of the district court.

. . . ” Rhoades v. Casey , 196 F.3d 592, 603 (5th Cir. 1999) (internal citation omitted). We review the district court’s decision to award at t o rney’s fees for abuse of discretion. Valdez v. Wal-Mart Stores, Inc. , 199 F.3d 290, 292 (5th Cir. 2000). Fees may be aw a r d ed “when the interpleader is a disinterested stakeholde r , a nd is not in s ubstantial controversy with one o f the claimants.” Rhoades , 196 F.3d at 603. New York Life was a disinterested stakeholder and

was not in substantial controversy with either defendant. The district court m ay take into account a number of factors when a ssessing wh e ther attorney’s fees are appropriate: “1) w hether the case i s simple or involved; 2) w h e t h e r the stakeholder performed any unique services for the cla i m a n ts or the court; 3) whether the stakeholder acted in good f aith and with diligence; 4) whether the

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services ren d e r e d benefited the stakeholder; and 5) whether the claimants improperly protracted the proceedings.” 7 Charles Alan Wri gh t , Ar thur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 1719, at 688-89 (3d ed. 2001); see a lso Royal I ndem. Co. v. Bates , 307 F

. App’x 801, 806 (5th Cir. 2009) (unpublished). T he di s t r i c t c o urt r elied u pon these factors and o rdered that Diane pay New York Life a reasonable fee, l i mited to the c o sts New York Life expended in responding to her oppositio n . T he district court did not abuse its discretion in so doing. C. In the alternative, Diane seeks a s tay in the present interpleader action, pending the outcome o f state court proceedings gov e r n i n g the partition of Anthon y and Cynthia’s community property, and specifically pending a ruling

as to the appropriate sanctions for Anthony and Cynthia’s alleged violations of the mutual injunction. She has provided no documentation that the state court intends to make such a ruling. Diane requested the s tay in the c onclusion of her appellate brief, an d i n the summary of her argument, as s e r t ed that the record supports a summary judgment in her f

a vor or, a lternatively, a stay o f proceedings. She failed to explain why the district court’s denial of her r e quest for stay was incorrect, cite
any cases, or point t o specific evidence in the r ecord that supported her request for a s tay. An appellant’s brief must contain “appellant’s co n t e n t ions and the

reasons f

o r t h e m , w ith citations to the authorities a nd p a rts of the record on which the appellant r elies[.]” Fed. R. App. P. 2 8(a)(8)(A). In o t h e r words, an argument “must be b riefed to be preserved.” Y ohey v. Collins , 985 F.2d 222, 225 (5th Cir. 1993). Because Diane did not adequately brief this issue, she waived it. See id.

10 Case: 12-30663 Document: 00512480108 Page: 10 Date Filed: 12/23/2013No. 12-30663 CONCLUSION For these reasons, we AFFIRM the district court’s February 1 6 , 2 0 1 2 o rder denying Diane’s motion for summary judgment; AFFIRM the d i strict court’s June 7 , 2012 o rder granting Cynthia’s motio n f o r s ummary judgment and declining to stay the judgment; AFFIRM the district cour t ’ s J u n e 13, 2012 judgment awarding Cynthia the p o li c y p r o c e e d s ; a n d AF F I RM th e di s tri ct court’s February 7, 2012 order granting in part New York Life’s Motion for Attorney’s Fees and Costs a nd ordering D iane to pay $750 attorney’s fees to New York Life.

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