* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30409

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

October 16, 2008

Charles R. Fulbruge III

Clerk
No. 08-30409

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

Luquette.

2

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 andLaurel CraneLuquette—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 thatthe named beneficiary of Mrs. Kreppein’s life insurance

policy be changed.

Although Mr. Kreppein feltthat 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
No. 08-30409

3

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
No. 08-30409

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

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
No. 08-30409

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

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 crossmotions 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 ofthe 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 respectto 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
No. 08-30409

6

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 allthe 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 courtto 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 effectthroughout the divorce proceedings—under article 3604(B) of the

Louisiana Code of Civil Procedure—because the Kreppeins agreed to a

continuance ofthe August 16 show-cause hearing. Mr. Kreppein claims that the

continuance was requested by Mrs. Kreppein’s attorney and that the state court
No. 08-30409

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

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
No. 08-30409

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 ofthe 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

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”
No. 08-30409

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

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.”
No. 08-30409

10

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 thatthe

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 thatlife insurance proceeds are sui generis has ledLouisiana 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. KennedyFagan, 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
No. 08-30409

11

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.