The Prudential Insurance Company of America v. Kopp et al

MOTION for Summary Judgment with Brief In Support

N.D. Ga.November 2, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE PRUDENTIAL INSURANCE ) COMPANY OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No. 1:14-CV-1878-RWS ) JEAN KOPP, and GREGORY KOPP ) and STEVEN KOPP, as Co-Trustees of ) THE GERALD A. KOPP IRREVOCABLE ) TRUST DATED DECEMBER 10, 1998, ) ) Defendants. ) DEFENDANT GREGORY KOPP’S MOTION FOR SUMMARY JUDGMENT COMES NOW Gregory Kopp (“Gregory”) and hereby moves this Court to grant summary judgment in his favor and award the proceeds of the Prudential Life Insurance Policy to the Co-Trustees of the Gerald A. Kopp Irrevocable Trust Dated December 10, 1998. Gregory further requests that the Court dismiss the counter- claims brought by Jean Kopp (“Jean”) against Gregory and Steven Kopp (“Steven”). In support of this Motion, Gregory files his Brief in Support of Motion for Summary Judgment. In further support of this Motion, Gregory also renews, relies upon, and incorporates herein by reference his Response to Defendant Jean Kopp’s Motion for Summary Judgment [Doc. No. 54]; his Response to Defendant Jean !1 Case 1:14-cv-01878-RWS Document 86 Filed 11/02/16 Page 1 of 3 Kopp’s Statement of Undisputed Facts [Doc. No. 54-1]; his Statement of Additional Material Facts Presenting a Genuine Issue for Trial [Doc. No. 54-2]; his Brief in Opposition to Defendant Jean Kopp’s Motion for Summary Judgment [Doc. No. 54-3] and Exhibits [Doc. No. 54-4, Exhibits “A” through “R”, inclusive]; his Motion for Judgment on the Pleadings After Remand [Doc. No. 79]; his Brief in Support of Gregory Kopp’s Motion for Judgment on the Pleadings After Remand [Doc. No. 79-1]; his Reply in Support of Motion for Judgment on the Pleadings After Remand [Doc. No. 82]; his Response to Defendant Jean Kopp’s Renewal of Motion for Summary Judgment and Motion to Bar Designation of Expert Witness [Doc No. 84]; and all matters of record. WHEREFORE, Gregory respectfully requests that this Court grant summary judgment in his favor on all pending claims and for such other relief as this Court deems just and proper. The undersigned verifies that this pleading has been prepared in Times New Roman 14 point font. Respectfully submitted this the 2nd day of November, 2016. s/ T. Kyle King_________ T. KYLE KING Georgia State Bar No. 421382 Attorney for Gregory Kopp HODGES, McEACHERN & KING 177 North Main Street Jonesboro, Georgia 30236 Phone: (770) 473-0072 Fax: (770) 473-0075 !2 Case 1:14-cv-01878-RWS Document 86 Filed 11/02/16 Page 2 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE PRUDENTIAL INSURANCE ) COMPANY OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No. 1:14-CV-1878-RWS ) JEAN KOPP, and GREGORY KOPP ) and STEVEN KOPP, as Co-Trustees of ) THE GERALD A. KOPP IRREVOCABLE ) TRUST DATED DECEMBER 10, 1998, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that on November 2nd, 2016, I electronically filed this MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ ECF system, which will automatically send notification of such filing to the following attorneys of record: Gary S. Freed Gregory H. Blazer John E. Robinson This the 2nd day of November, 2016. s/ T. Kyle King_________ T. KYLE KING Georgia State Bar No. 421382 Attorney for Gregory Kopp HODGES, McEACHERN & KING 177 North Main Street Jonesboro, Georgia 30236 Phone: (770) 473-0072 Fax: (770) 473-0075 kyle@hmklawoffice.com !3 Case 1:14-cv-01878-RWS Document 86 Filed 11/02/16 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA THE PRUDENTIAL INSURANCE ) COMPANY OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No. 1:14-CV-1878-RWS ) JEAN KOPP, and GREGORY KOPP ) and STEVEN KOPP, as Co-Trustees of ) THE GERALD A. KOPP IRREVOCABLE ) TRUST DATED DECEMBER 10, 1998, ) ) Defendants. ) DEFENDANT GREGORY KOPP’S BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant Gregory Kopp (“Gregory”) and files this Brief in Support of his Motion for Summary Judgment. Gregory renews and incorporates by reference his Response to Defendant Jean Kopp’s Motion for Summary Judgment [Doc. No. 54]; his Response to Defendant Jean Kopp’s Statement of Undisputed Facts [Doc. No. 54-1]; his Statement of Additional Material Facts [Doc. No. 54-2]; his Brief in Opposition to Defendant Jean Kopp’s Motion for Summary Judgment [Doc. No. 54-3] and Exhibits [Doc. No. 54-4, Exhibits “A” through “R”, inclusive]; his Motion for Judgment on the Pleadings After Remand [Doc. No. 79]; his Brief in Support of Gregory Kopp’s Motion for Judgment on the Pleadings After Remand [Doc. No. 79-1]; his Reply in Support of Motion for !1 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 1 of 8 Judgment on the Pleadings After Remand [Doc. No. 82]; and his Response to Defendant Jean Kopp’s Renewal of Motion for Summary Judgment and Motion to Bar Designation of Expert Witness [Doc No. 84]. Gregory relies on the aforesaid renewed Briefs, Exhibits, Responses, and Motion in support of his Motion for Summary Judgment, and supplements the foregoing as follows: SUPPLEMENT TO FACTUAL BACKGROUND On August 28, 2015, this Court granted judgment on the pleadings in favor of Gregory and Steven Kopp (“Steven”) [Doc. No. 65]. The Eleventh Circuit Court of Appeals vacated the entry of judgment on the pleadings and remanded, finding that the judgment “did not address Jean’s arguments that the Trust agreement provided differently from the policy’s default requirement that each trustee sign the form” [Doc. No. 77, p. 9]. The Court of Appeals held that “an unresolved question exists concerning whether Gregory had the power to unilaterally effect a change in beneficiary” [Id.]. SUPPLEMENT TO ARGUMENT AND CITATION OF AUTHORITY As noted by Gregory in his Brief in Support of Motion for Judgment on the Pleadings After Remand [Doc. No. 79-1, pp. 1-2] and by Steven in his Supplemental Brief in Support of Motion for Summary Judgment and in Response to Defendant Jean Kopp’s Renewal of Motion for Summary Judgment [Doc. No. 85-1, pp. 2-4], the answer to the “unresolved question” is an emphatic NO, and can be determined based solely on the language of the Trust [Doc. No. 57-3]. Gregory !2 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 2 of 8 did not have, and did not purport to exercise, the unilateral power to change the Policy’s beneficiary. When contending that Gregory had such power, Defendant Jean Kopp (“Jean”) relies on Article 3, Section 12, of the Trust [Doc. No. 57-3, pp. 10-11], which grants Gregory the power to gift Trust property. Jean ignores that this power is limited by the provisions of Article 12, Section 8 [Id., p. 28], which explicitly requires the “unanimous consent of the other Trustees if the action proposed to be taken involves trust property valued at $50,000 or more” [Id.]. Article 12, Section 8, applies “[n]otwithstanding anything to the contrary” in the Trust [Id.]. Gregory’s conduct as Co-Trustee before the execution of the change form at issue did not violate the requirement of Article 12, Section 8. Jean identifies several independent actions Gregory purportedly took as Co-Trustee, including a change of ownership and beneficiary submitted to USAA insurance company [Doc. No. 53-2, p. 9], pursuing and receiving the proceeds of the USAA life insurance policy [Id.], and applying to the Internal Revenue Service for a federal employer identification number [Id., p. 10]. None of these actions conflicted with the limitations on Gregory’s power as a Co-Trustee, as established by Article 12, Section 8. The USAA life insurance policy referred to by Jean involved only $15,820.97 [Doc No. 53-11, p. 11]. Because this Trust property was valued at less than $50,000, Gregory, by the term of the Trust, was not required to obtain the unanimous consent of all Co-Trustees. Gregory’s actions as Co-Trustee before the !3 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 3 of 8 execution of the change form at issue never conflicted with Article 12, Section 8, of the Trust, did not confer upon him powers specifically withheld by the Trust document, and did not represent an attempt on his part to act beyond his capacity as one, but only one, of two Co-Trustees. Because O.C.G.A. § 9-11-56 is substantially identical to Fed. R. Civ. P. 56, Holland v. Sanfax Corp., 106 Ga. App. 1, 4(1) (1962), and has been construed in light of federal appellate authority, Moore v. Atlanta Transit Sys., 105 Ga. App. 70, 72(1) (1961), it is noteworthy in the summary judgment context that the rule in Georgia is that the testimony of a party who offers herself as a witness in her own behalf at trial is to be construed most strongly against her when it is self- contradictory, vague, or equivocal. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28(1) (1986). Once the trial court has eliminated the favorable portions of the contradictory testimony, it must take all testimony on a motion for summary judgment as it then stands and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted. Prophecy, 256 Ga. at 28. That the rule of summary judgment places on the moving party the burden of demonstrating that there are no genuine issues of fact and that he is entitled to judgment as a matter of law while providing that the party opposing the motion is entitled to all favorable inferences from the evidence does not suspend the application of this rule for construing testimony to summary judgment !4 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 4 of 8 proceedings. Id. at 28-29. In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. Id. at 30(2). On summary judgment, this is a question for the judge to decide. Id. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony. Id. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. Id. A careless and untruthful witness may have simply forgotten what she said in her first statement and tailored her second statement to meet the needs of the occasion without regard to the truth, and the law will construe this contradiction against her. Id. Jean’s sworn testimony is that she has no knowledge whether the Trust still existed at the time of the death of Gerald A. Kopp (“Decedent”) [Doc. No. 54-4, p. 87 (Exhibit “M”, p. 66, lns. 6-9)]; that she has no idea whether the Prudential policy is still owned by the Trust [Id., p. 89 (Exhibit “M”, p. 68, lns. 3-5)]; that she knows nothing about the Prudential policy at issue [Id., pp. 91-92 (Exhibit “M”, p. 73, ln. 15-p. 74, ln. 11)]; that she does not remember why Gregory came to the Decedent’s house on the day the Prudential beneficiary change form was signed [Id., p. 93 (Exhibit “M”, p. 127, lns. 19-21)]; that she does not recall any of the conversation that occurred when the beneficiary change form was signed [Id., pp. 93-94 (Exhibit “M”, p. 127, ln. 23-p. 128, ln. 1)]; that she really does not know why Gregory was being asked to sign the beneficiary change form [Id., p. 94 !5 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 5 of 8 (Exhibit “M”, p. 128, lns. 2-6)]; and that she has no idea of the significance or purpose of the beneficiary change form [Id., pp. 95-96 (Exhibit “M”, p. 129, lns. 16-18; p. 129, ln. 24-p. 130, ln. 3)]. To the extent that these sworn statements by Jean contradict her other testimony, the favorable portions of her testimony must be eliminated, and the Court must take all testimony on this Motion for Summary Judgment as it then stands — including Gregory’s sworn testimony regarding the execution of the beneficiary change form at issue [Doc. No. 54-4, pp. 46-48 (Exhibit “B”)] — and construe it in favor of the party opposing the motion in determining whether summary judgment should be granted. 256 Ga. at 28. SUPPLEMENT TO CONCLUSION Echoing Steven [Doc. No. 85-1, p. 4], Gregory urges this Court to answer the question posed by the Court of Appeals in the negative. Gregory did not have, and did not attempt to exercise, the unilateral authority to execute a beneficiary change form for the Policy at issue. Accordingly, the Court should deny Jean’s Renewal of Motion for Summary Judgment [Doc. No. 83] and grant Gregory’s Motion for Judgment on the Pleadings After Remand [Doc. No. 79], or, in the alternative, grant summary judgment in favor of Gregory and Steven, as requested in this Motion for Summary Judgment and in Steven’s Motion for Summary Judgment [Doc. No. 85]. The undersigned verifies that this pleading has been prepared in Times New Roman 14 point font. !6 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 6 of 8 Respectfully submitted this the 2nd day of November, 2016. s/ T. Kyle King_________ T. KYLE KING Georgia State Bar No. 421382 Attorney for Gregory Kopp HODGES, McEACHERN & KING 177 North Main Street Jonesboro, Georgia 30236 Phone: (770) 473-0072 Fax: (770) 473-0075 !7 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 7 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE PRUDENTIAL INSURANCE ) COMPANY OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No. 1:14-CV-1878-RWS ) JEAN KOPP, and GREGORY KOPP ) and STEVEN KOPP, as Co-Trustees of ) THE GERALD A. KOPP IRREVOCABLE ) TRUST DATED DECEMBER 10, 1998, ) ) Defendants. ) CERTIFICATE OF SERVICE I hereby certify that on November 2nd, 2016, I electronically filed this BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will automatically send notification of such filing to the following attorneys of record: Gary S. Freed Gregory H. Blazer John E. Robinson This the 2nd day of November, 2016. s/ T. Kyle King_________ T. KYLE KING Georgia State Bar No. 421382 Attorney for Gregory Kopp HODGES, McEACHERN & KING 177 North Main Street Jonesboro, Georgia 30236 Phone: (770) 473-0072 Fax: (770) 473-0075 kyle@hmklawoffice.com !8 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 8 of 8