## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-10859 Summary Calendar

_______________



### M ETROPOLITAN 

### L IFE 

### I NSURANCE 

### C O 

### .,
Plaintiff,

VERSUS



### R ICHARD 

### E. C OUCH 

### , S R 

### .,

Defendant-Appellant,

VERSUS



### C HAD 

### J. B URGESS AND 

### K YLI 

### A. C OUCH 

### , Defendants-Appellees.

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

_________________________

January 31, 2002

Before J ONES , S MITH , and E MILIO M. G ARZA , Circuit Judges. PER CURIAM: *

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not prec edent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.2 I. Richard Couch killed his wife in November 1997 and pleaded guilty of involuntary manslaughter. In October 2000, Metropolitan Life Insurance Company (“Metropolitan”) sued in interpleader to clarify its obligation to
pay benefits because of Martha’s death. Martha’s children, Kyli Couch and Chad B urgess, claimed that under Texas law, they

were entitled to Richard’s share because he had forfeited it by killing Martha.

The district court granted su mmary judgment in favor of the children, and Richard appeals pro se . Finding no error, we affirm.

II. We review a summary judgment de novo under the same standard applied by the district
court. King v. Ames
, 179 F.3d 370, 373 (5th Cir. 1999). The record is reviewed in the light
most favorable to the nonmoving party, and the movant is required to “demonstrate that there are no genuine issue s o f material fact.” Id.

III. Couch argues t hat t he claim is prescribed, bec ause in Texas, a wrongful death action
must be filed with in t wo years after accrual. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.0003(b) (Vernon 1986). This is not a wrongful death claim, however, but a dispute

over contractual entitlements to insurance payments. In Texas, “a breach of contract claim is governed by a four-year limitation period.” Kan. Reinsurance Co. v. Congressional Mort. C orp. , 20 F.3d 1362, 1369 (5th Cir. 1994) (citing T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.0004 (Vernon 1986)). Thus, there is no doubt t hat the claims were timely filed, because Metropolitan initiated this litigation well within the allotted four-year period. IV. C o uch contends he cannot be deprived of his right to co llect on the policy because he

was not convicted of inten t io nal homicide. Under Texas law, a life insurance beneficiary forfeits his rights only

if he is a principal or accomplice in willfully bringing ab out the death of t he insured. T E X

. I NS

. C ODE A NN

. art. 21.23 (Vernon Supp. 20 01). Couch was convicted only of involuntary manslaughter.

This, however, is not ground for rev ersal

. “[I]t is settled law” in Texas “that the judgment in the criminal c a se [is] not binding
upo n the court in the civil proceeding.” Bounds v. Caudle

, 560 S.W.2d 925, 928 (Tex. 1977). This principle is “particularly applicable here wher e the conviction was based upon plea bargaining.” Id.

V. Couch argues that th e district court improperly admitted five affidavits submitted by the children because they were not “sworn statements” admissible under F ED

. R

. C IV

. P. 56. To the contrary, all five were sworn to be “true and correct” before a notary p ublic and

are proper summary judgment evidence under F E D

. R. C IV

. P. 56(e). C f. Nissho-Iw a i Am. Corp. v. Kl ine , 845 F.2d 1300, 1305-06 (5th Cir. 1988) (findi n g that a notarized affidavit

was not admissible as summary judgment evidence under rule 56(e), but only because it

was “neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury”).

The summary judgment is AFFIRMED. All pending motions are DENIED.