Burch-Lucich v. Lucich et al

Filing 68

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial summary judgment 48 is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BEAU BURCH-LUCICH,
Case No. 1:13-cv-218-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
GARY L. LUCICH; MARCAE
LUCICH; MICHELLE LUCICH NIECE;
LUCICH FAMILY LIMITED
PARTNERSHIP, an Idaho limited
partnership; and NORTHWEST
FUNDING, LLC, formerly known as
LUCICH LLC, an Idaho limited liability
company,
Defendant.

INTRODUCTION
The Court has before it a motion for partial summary judgment filed by
defendants. The motion was argued on January 22, 2015, and taken under advisement.
For the reasons expressed below, the Court will deny the motion.
BACKGROUND
Plaintiff Beau Burch-Lucich alleges that his grandparents and aunt collected an
inheritance from his father’s estate meant for him. He brings this action to recover
damages for their fraud.

Memorandum Decision & Order – page 1

While this litigation raises many issues, two stand out from among the rest: (1) Is
Beau the son of Troy Lucich?; and (2) If Beau is Troy’s son, did Troy’s parents and sister
know about Beau when they probated Troy’s estate without mentioning Beau?
Beau was born on February 16, 1990 to Marty Burch (now known as Marty
Herrin). Marty claims that Troy is Beau’s father. Marty asserts that (1) she and Troy had
sexual intercourse on a regular basis between April and July of 1989; (2) that in May or
June of 1989, she was pregnant, and shared the results of a pregnancy test with Troy; and
(3) that during this period she did not have sexual relations with any other man. See
Herrin Affidavit (Dkt. No. 53-3) at ¶¶ 2, 4; Herrin Deposition (Dkt. No. 53-2) at pp. 34850.1
Marty and Troy were never married. They split up before Beau was born, and
never got back together. Troy lived in Idaho while Marty moved to Washington and then
to Texas where she raised Beau. In Idaho, Troy married Leslie McKnight (now Leslie
Cazamira) in 1993 and they later divorced in 1997. In 1998, Troy died at the age of 31;
Beau was 8, but neither he nor his mother Marty was aware of Troy’s death until 2004.
Troy died without a will, without a surviving spouse, and without any surviving
children other than Beau, whose paternity is at issue here. Under Idaho law, an intestate
estate passes to “the issue of the decedent” if there is no surviving spouse. See Idaho

1

Defendants argue that Marty claims that she was pregnant in March of 1989, but she later
corrected that statement in her deposition. See Herrin Deposition (Dkt. No. 53-2) at pp. 348-50.

Memorandum Decision & Order – page 2

Code § 15-2-103(a). If there are no surviving issue, the estate passes to “his parents.” Id.
at (b).
On August 21, 1998, defendant Gary Lucich (Troy’s father) filed an Application
for Informal Appointment of Personal Representative in Intestacy with the Ada County
District Court. See Application (Dkt. No. 53-4). In the Application, Gary lists the
“names and addresses of the spouse, children and heirs of the decedent, and the ages of
those who are minors so far as known or ascertainable with reasonable diligence by the
applicant.” Id. He listed (1) himself, (2) his wife, defendant Marcae Lucich, and (3) their
daughter, defendant Michelle Bennett. Id. He did not list Beau. Id. On August 26,
1998, Gary was appointed personal representative of Troy’s estate. The estate’s assets
were eventually distributed to (1) Gary and Marcae; (2) Michelle and her children; and
(3) the defendant Lucich Family Limited Partnership. See Complaint (Dkt. No. 1) at ¶ 18.
Gary claims that he “had no awareness of Troy Lucich having fathered a child
while alive or of the existence and identity of [Beau] prior to 2004.” See Gary Lucich
Affidavit (Dkt. No. 48-3) at ¶ 4. He also alleges that the liabilities of the estate exceeded
its assets. See Statement (Dkt. No. 52) at ¶ 14.
During the summer of 2004, when Beau was fourteen years old, he wanted to meet
his father. Marty learned that Troy had passed away, and she contacted Troy’s parents,
Gary and Marcae Lucich. She states that they “invited Beau, me, and my two other
children to visit and stay with them . . . .” See Herrin Affidavit, supra, at ¶ 9. The
Luciches arranged and paid for the airfare for their visit. Id. They were met at the airport
by the Luciches holding a sign stating “Welcome Beau Burch Lucich.” See Photo (Dkt.
Memorandum Decision & Order – page 3

No. 53-4). Marty recalls that “the Luciches said to me that, although they were sure Beau
was Troy’s son, they thought doing a paternity test would be good for everyone
involved.” Id. at ¶ 10.2 Marty alleges that the paternity test was done and the results
shared. Id. Marty lost her copy of the test, and no copy has been provided to the Court.3
Shortly after the results of the paternity test were shared, Marty alleges that the
Luciches arranged for an attorney to change Beau’s name to “Beau Burch-Lucich,” and
that was accomplished. Id. at ¶ 12. In addition, Beau’s grandparents told him he was
entitled to an 11% interest in the Lucich Family Limited Partnership, which was created
in 1999, after Troy’s death. That 11% interest was allegedly conveyed to Beau during a
family meeting. See Complaint, supra, at ¶ 3.
Beau claims he did not learn about the probate of his father’s estate until April of
2013. To recover his share of Troy’s estate, Beau sued (1) his grandparents, Gary and
Marcae Lucich; (2) his aunt – Troy’s sister – Michelle; and (3) the Lucich Family
Limited Partnership. Beau alleges seven claims against these defendants: (1) probate
fraud under Idaho Code § 15-1-106; (2) conspiracy to commit probate fraud; (3) breach
of fiduciary duty; (4) conspiracy to breach “partnership fiduciary duties”; (5) constructive
trust; (6) declaratory judgment; and (7) a “partner’s direct action” under Idaho Code 532-1001.
2

These statements of the defendants are not hearsay under Rule 801(d)(2)(A).

3

While Marty alleges that the test showed that Troy was Beau’s father, no test results have been
provided to the Court. Marty’s statement as to the results of the test are inadmissible hearsay. The Court
will therefore ignore her testimony about the results. But her testimony that a paternity test was done is
not hearsay because she is recounting a fact she observed.

Memorandum Decision & Order – page 4

The defendants have filed a motion for partial summary judgment seeking
dismissal of the first and second claims (for probate fraud and conspiracy) and parts of
the third and fifth claim (for breach of fiduciary duty and constructive trust) as they relate
to the estate of Troy. The defendants’ motion challenges Beau’s allegations concerning
whether he has proffered sufficient proof that (1) Troy is his father; (2) the defendants
knew about him when they probated Troy’s estate; (3) he was injured by his exclusion
from the estate probate proceedings; and (4) he complied with the statute of limitations.
The Court will consider each of these issues below, after discussing briefly the legal
standard governing summary judgment motions.
SUMMARY JUDGMENT LEGAL STANDARDS
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Direct testimony of the non-movant must be believed, however
implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other
hand, the Court is not required to adopt unreasonable inferences from circumstantial
evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
ANALYSIS
Paternity
Defendants argue that there is no evidence from which a reasonable juror could
find by clear and convincing evidence that Beau is Troy’s son. The Court disagrees.
Marty has testified that between April and July of 1989 she “had sexual intercourse with
[Troy] regularly and often.” See Herrin Affidavit (Dkt. No. 53-3) at ¶ 2. She also states
Memorandum Decision & Order – page 5

that during that time “I had no sexual relations with any other man.” Id. She discovered
she was pregnant with Beau in May or June of 1989, and gave birth to him on February
16, 1990. Id. at ¶ 4; Herrin Deposition, supra at pp. 348-50. A reasonable juror could
find Marty credible, and find that her testimony provides clear and convincing evidence
that Troy is Beau’s father.4 Because questions of fact exist on this issue, the Court rejects
defendants’ request to resolve this issue as a matter of law.
Fraud Claim Against Gary and Marcae
Defendants argue that there is no evidence from which a reasonable juror could
conclude that Gary and Marcae knew about Beau when they probated Troy’s estate in
1998. The Court disagrees.
First, the probate fraud claim does not require that Gary knew about Beau when he
filled out the Application discussed above. The Application required that Gary list
Troy’s children “so far as known or ascertainable with reasonable diligence by the
applicant.” That language requires that if Gary suspected that Troy had a child, he must
investigate that suspicion with “reasonable diligence.” There is no evidence in this
record that Gary undertook any such investigation. So the probate fraud claim turns on
whether Gary suspected that Troy had a child, not on whether Gary knew about Beau.
What evidence exists that Gary suspected Troy had a child? There is evidence
from which a reasonable jury could infer that (1) Troy suspected he fathered Beau, and

4

During oral argument, Beau’s counsel conceded that the clear and convincing standard applied

here.

Memorandum Decision & Order – page 6

(2) that Troy told Gary prior to 1998 that Marty was demanding child support for Beau.
The Court turns first to evidence that Troy suspected he fathered Beau.
This paternity evidence centers on Marty’s allegations, identified above, that she
and Troy had regular sex from April to July of 1989, and she became pregnant around
May of 1989 and communicated the results of a pregnancy test to Troy. See Herrin
Deposition (Dkt. No. 53-2) at pp. 348-50. Troy’s reaction is captured in his writings on a
tablet on which he and Marty exchanged messages to each other:
Troy:

“I was going to send you home . . . [b]ut I can’t let you go home with our
child!!”

Marty:

“Are you disappointed?”

Troy:

“No, I already knew I was a dad.”

Marty:

“Just wondering! You never can tell something could happen.”

Troy:

“Something? What ‘honestly’ are you talking about?”

Marty:

“Miscarriage or something with my blood!”

Troy:

“I’m a little worried about a miscarriage but not you blood.”

See Tablet (Dkt. No. 53-3) at App. 167-71.5
A reasonable juror could find from this evidence that – at the very least – Troy
suspected he was the father of Marty’s baby. Did Troy communicate this to Gary before

5

Troy’s statements are contrary to his pecuniary interest because they expose him to liability for
child support. Thus, although his statements are hearsay, they fall within the exception listed in Rule
804(b)(3)(A).

Memorandum Decision & Order – page 7

the probate of the estate in 1998? A reasonable juror could so infer, based on testimony
concerning two phone calls, and their aftermath, in 1993.
Marty testified that she called Troy in 1993. See Herrin Deposition, supra, at p.
133. Troy’s wife at the time – Leslie – testified that Troy took the call and that she stood
nearby listening to his end of the conversation. See Cazamira Deposition (Dkt. No. 53-2)
at p. 32-33. Leslie recalls that after some conversation over the phone, Troy “put the
phone on hold” and “told me that there was this woman on the phone and she was saying
that he had – that he had to pay child support.” Id. at p. 33. Leslie asked Troy whether
he had a child, and he responded that he did not know. Id. at pp. 32-33. Leslie took the
receiver from Troy and told Marty that a DNA test was necessary for child support, at
which time the call ended.6 Id. In her deposition testimony, Marty confirmed that they
demanded a paternity test. Herrin Deposition, supra at p. 134.
Leslie testified that a few months later, a woman (presumably Marty) called again,
repeating her demand for child support. Leslie recalls that Troy told her that the child at
issue was named Beau. Cazamira Deposition at p. 104. During this second call, Leslie
and Troy demanded DNA testing before any child support would be paid, and the call
ended with nothing being resolved. Id. at pp. 36-37. After Troy hung up the phone, and
as Troy and Leslie were discussing the call, Michelle arrived – Leslie recalls that “we

6

Marty’s demands for child support, and the counter-demands by Troy and Leslie for a DNA
test, are not hearsay because they are offered simply to prove demands were made, not to prove the truth
of any fact asserted in the demands. See U.S. v. White, 639 F.3d 331, 337-38 (7th Cir. 2011) (holding that
note demanding money was not hearsay because it was offered to prove a demand, not to prove the truth
of any fact asserted in the note).

Memorandum Decision & Order – page 8

talked with her [Michelle] about it [the call]” and that “[w]e told Michelle there was this
woman saying there was a child that was Troy’s child.” Id. at pp. 38-39. According to
Leslie, Michelle responded that Gary and Marcae needed to be told about this.7 Id. at p.
40. Troy said that he would tell his parents. Id.8 A reasonable juror could infer that
Troy, facing an expensive dispute over child support, would seek help from his parents
because, as Gary testified, “I financed or I gave both of my children financial assistance
whenever I felt they needed it or they needed to purchase something.” See Gary Lucich
Deposition (Dkt. No. 48-10) at p 38 (discussing providing financial assistance to Troy in
1997 by purchasing his home).
Shortly after that second call – or as Leslie testified, “on the heels of that second
phone call” – Gary told Leslie during a dinner conversation that “it looks like we have an
issue that needs to be dealt with.” Cazamira Deposition, supra, at p. 44. When Leslie
responded that she did not know what he was talking about, Gary replied, “I think you
do,” at which point Leslie walked away.9 Id.
From the entirety of evidence discussed above, a reasonable juror could infer that
(1) Troy strongly suspected he was Beau’s father and was concerned about Marty’s
7

Michelle’s comments, related by Leslie, are not hearsay under Rule 801(d)(2)(A) because they
are the statements of a defendant offered against her.
8

Assuming Troy’s statement is hearsay, it falls within the exception in Rule 803(3) as a
“statement of the declarant’s then-existing state of mind (such as . . . intent or plan).”
9

Gary’s comments, related by Leslie, are not hearsay under Rule 801(d)(2)(A) because they are
the statements of a defendant offered against him.

Memorandum Decision & Order – page 9

demand for child support; (2) Troy sought financial help from his parents by telling them
about Marty’s child support demands and his suspicions that he was the father; (3) that
Marty’s child support demand was the subject of Gary’s comments to Leslie during their
dinner conversation; and (4) therefore Gary suspected prior to the 1998 probate that Troy
had a son.10
Defendants deny any knowledge of Beau until meeting him in 2004. Under the
defendants’ version, a previously unknown woman (Marty) called them out of the blue in
2004 – eight years after Troy’s death – to inform them that Troy had a previously
unknown son (Beau). Such a call would typically elicit skepticism at best and hostility at
worst. But the Luciches responded in a way that could lead a reasonable juror to infer
they had suspected for some time that Troy fathered a son. The Luciches invited Marty
and her family to stay with them and paid their airfare to fly to Boise. When they arrived
at the Boise airport, they were warmly received by the Luciches – a welcome that
included a sign held by Michelle stating “Welcome Beau Burch Lucich.” These are the
actions of a family that had suspected for some time that Beau was Troy’s son.11

10

The Court has not considered Troy’s July 1989 letter to Marty regarding showing the
ultrasound photo to his parents. The Court finds that it need not resolve the evidentiary challenges to the
letter at this time because enough other evidence creates questions of fact warranting a denial of the
motion for summary judgment.
11

Defendants argue that even if the 2004 welcome infers some prior suspicion on the part of the
Luciches, to rely on the 2004 welcome to infer suspicion all the way back to the 1998 probate would be to
stretch the inference far beyond its breaking point. The Court agrees. But the 2004 welcome does not
stand alone – it must be examined in the context of the entirety of the evidence discussed above.
Moreover, its real significance comes from the way it contradicts the defendants’ version of events, as
discussed above.

Memorandum Decision & Order – page 10

All of this evidence taken together creates questions of fact over whether the
defendants suspected – prior to the 1998 probate – that Troy fathered a child. The Court
therefore rejects defendants’ request to decide this issue as a matter of law.
Injury
Defendants argue that because the estate’s liabilities exceeded its assets, Beau
suffered no injury from being precluded from the probate proceedings. But there are
questions of fact on this issue. Beau points out that Idaho law would have allowed him to
claim exempt personal property up to a value of $3,500 and a homestead allowance up to
$10,000, to be paid ahead of any claims against the estate. Defendants do not contest that
reading of Idaho law. It at least creates a question of fact precluding summary judgment
for the defense on this issue.12
Statute of Limitations
This action was filed on May 30, 2013. The parties agree that the fraud and
conspiracy claims are barred if Beau had “discovery of the fraud” at any time more than
two years before that date, e.g., before May 30, 2011. See Idaho Code § 15-1-106
(requiring that “[a]ny proceeding must be commenced within two (2) years after the
discovery of the fraud”).
Under the general law regarding the discovery rule, the limitations period does not
begin until the plaintiff has actual knowledge of the facts constituting fraud, which may

12

Both sides reserve an argument on whether the $75,000 minimum damage amount for diversity
jurisdiction is present here. The Court will not take up the issue until it is fully briefed.

Memorandum Decision & Order – page 11

be inferred in some circumstances if the aggrieved party could have discovered the fraud
by reasonable diligence. McCoy v. Lyons, 820 P.2d 360, 368 (Idaho 1991). But the
discovery rule “requires more than an awareness that something may be wrong . . . .” Id.
at 368. Moreover, under the statute governing probate fraud, “there is no duty to exercise
reasonable care to discover fraud; the burden should not be on the heirs and devisees to
check on the honesty of the other interested persons or the fiduciary.” See Comment to
Official Text, Idaho Code §15-1-106.
Here, Beau testified that he trusted his grandparents. Certainly the warm welcome
he received in 2004 from his grandparents, and their hospitality in letting them stay for
four months, would have instilled trust. It was not until they got into an argument that
Beau checked the probate records in April of 2013, saw that Troy died without a will, and
discovered the alleged probate fraud. See Burch-Lucich Affidavit (Dkt. No. 53-3) at ¶ 18.
While there is other evidence that he may have been questioning his grandparents’ good
faith prior to 2013, the Court must assume Beau’s allegations are true, and so cannot
resolve this issue as a matter of law. McCorkle v. Northwestern Mutual Life Ins. Co., 112
P.3d 838, 843 (Idaho Ct. App. 2005) (holding that “the question of when the plaintiff
discovered the fraud is generally a question for the jury, and summary judgment on the
issue is only appropriate if there is no factual dispute about when this discovery
occurred”).
Conclusion
The briefing raises other issues, but the findings above warrant denial of the
motion for partial summary judgment in its entirety.
Memorandum Decision & Order – page 12

ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial
summary judgment (docket no. 48) is DENIED.

DATED: March 31, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 13