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Burch-Lucich v. Lucich

United States District Court, D. Idaho

March 31, 2015

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.


B. LYNN WINMILL, Chief District Judge.


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.


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.

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. 348-50.[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 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. 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 53-2-1001.

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 ...

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