IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50675

Summary Calendar

HYDE & HYDE, INCORPORATED; TIMOTHY HYDE,

Plaintiffs–Appellants

v.

MOUNT FRANKLIN FOODS, L.L.C.; SUNRISE CANDY, L.L.C.; 

ELAMEX USA CORPORATION,

Defendants–Appellees

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:11-cv-00008-FM

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

This case centers on a dispute over packaging equipment that Appellants

leased and subsequently transferred to a third party. The equipment was then

re-transferred multiple times before being returned years later. Appellants

brought suit alleging, inter alia, conversion. The district court granted summary

judgment against Appellants, who now appeal. For the reasons discussed below,

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2013

Lyle W. Cayce

Clerk

* 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.

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we deny Appellants’ motion to expand the record and affirm the district court’s

summary judgment determination.

I

The facts of this case are mostly undisputed. In 2002, General Electric

Capital (“GE Capital”), the original owner of the packaging equipment at issue,

leased the equipment to Hyde & Hyde, Inc., with Timothy Hyde (collectively

“Appellants”) personally guaranteeing the lease. In 2005, with GE Capital’s

consent, Appellants transferred their interest in the lease to Sweet Ventures,

LLC (“Sweet Ventures”), while still remaining liable to GE Capital for any

underlying breach of the lease agreement. In 2007, Sweet Ventures reorganized

as Simply Goodies, LLP (“Simply Goodies”) and took possession of the packaging

equipment without the approval of GE Capital or Appellants. Bridge Finance

Group (“Bridge”) financed the reorganization and took a security interest in

Simply Goodies’ assets.

When Simply Goodies breached its obligations to Bridge, Bridge foreclosed

on Simply Goodies’ assets. Bridge sold Simply Goodies’ assets to a separate

company, Sunrise, and directed Simply Goodies to deliver its assets to Sunrise. 

Simply Goodies included GE Capital’s equipment in its asset delivery, and

Sunrise took possession of it. There remains a dispute whether Sunrise knew

it was taking possession of property subject to Appellants’ lease, but the dispute

is immaterial to the issues presented here. After Sunrise took possession of the

equipment, the equipment was transferred to Mexico.

In 2009, GE Capital brought a suit for default and breach of contract

against Appellants, Sweet Ventures, and Sunrise, among others. In December

2010, GE Capital and Appellants entered into a settlement agreement (“2010

settlement”) to resolve the case. The 2010 settlement included a quitclaim deed

to the equipment and assigned to Appellants “all of [GE Capital’s] rights and

interests, if any, in the Equipment.”

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Appellants thereafter filed suit, alleging conversion and fraud against

Appellees. As part of their case-in-chief, Appellants offered a document intended

to clarify the scope of the 2010 settlement. The parties cross-moved for

summary judgment, and the district court granted summary judgment in

Appellees’ favor. Appellants filed a timely appeal and moved to expand the

record on appeal to include yet another supplement to the 2010 settlement. This

second document purports to amend the 2010 settlement, whereas the first

document merely sought to clarify the settlement. This opinion addresses both

Appellants’ motion to expand the record and the merits of the appeal.

II

The district court entered final judgment on April 30, 2012 and denied

Appellants’ motion for reconsideration on June 4, 2012. Appellants filed their

notice of appeal on July 5, 2012. Therefore, we have jurisdiction pursuant to

28 U.S.C. § 1291.

III

In addition to appealing the district court’s grant of summary judgment,

Appellants have moved to expand the record on appeal to include a new

agreement between Appellants and GE Capital that attempts to resolve the

shortcomings in the 2010 settlement identified by the district court. Unlike

Appellants’ prior attempt, which was styled as a mere clarification, this

document purports to amend the 2010 settlement to specifically include an

assignment of claims. The amendment was executed after the district court

granted summary judgment and after the district court denied Appellants’

motion for reconsideration.1 As such, the amendment did not constitute a part

of the record on appeal. It does, however, constitute part of Appellants’ case-in1

In fact, the amendment was executed the same day as the district court’s denial of the

motion for reconsideration.

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chief in a second, separate lawsuit undertaken in part to re-litigate issues raised

before the district court.

Rule 10(e)(2)(C) of the Federal Rules of Appellate Procedure allows the

Court to supplement the record on appeal “[i]f anything material to either party

is omitted from or misstated in the record by error or accident[.]” Fed. R. App.

P. 10(e)(2)(C). The courts of appeal rarely exercise this authority, and the

determination to do so is made on a case-by-case basis. See Dickerson v.

Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982). Attempts to supplement the

record with new evidence that was not before the district court and that is part

of a related, pending case are especially disfavored. Karaha Bodas Co. v.

Perusahaan Perambangan Minyak Dan Gas Bumi Negara, No. 02-20042, 2003

WL 21027134, at *3 (5th Cir. Mar. 5, 2003) (per curiam) (unpublished); Kemlon

Prods & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981).

We deny Appellants’ motion because the document offered was not omitted

from the record by error or accident, as Rule 10(e)(2) requires. The amendment

was executed after the district court issued its final determination, and it

amounts to a new factual basis for pursuing a claim already decided by the

district court based on the record then before it. Moreover, this document is part

of the record in a related, pending case. The Court of Appeals is not the venue

for instituting parallel proceedings or attempting to re-litigate claims based on

a newly-executed agreement. Therefore, Appellants’ motion is denied.

IV

“We review a grant of summary judgment de novo, applying the same

standard as the district court.” Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d

752, 754 (5th Cir. 2011). Summary judgment is proper only where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if the summary

judgment evidence is such that a reasonable jury could return a verdict for the

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non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here,

Appellants challenge the district court’s grant of summary judgment in

Appellee’s favor on their conversion claim. This argument takes two forms: first,

Appellants argue that they presented a triable conversion claim on the basis of 

the assignment of rights received from GE Capital in the 2010 settlement; and

second, Appellants claim that they presented a triable conversion claim

regardless of whether the 2010 settlement assigned GE Capital’s cause of action. 

To facilitate our analysis, we address Appellants’ claims in reverse order.

A

Under Texas law,2a conversion is the “unauthorized and wrongful

assumption and exercise of dominion and control over the personal property of

another, to the exclusion of or inconsistent with the owner’s rights[.]” Waisath

v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). “The plaintiff must prove

that: (1) he legally possessed the property or was entitled to it; (2) the defendant

wrongfully exercised dominion and control over the property, excluding the

plaintiff; (3) the plaintiff demanded the property’s return; and (4) the defendant

refused.” Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 705 (5th

Cir. 2009) (citing Small v. Small, 216 S.W.3d 872, 877 (Tex. App.—Beaumont

2007, pet. denied)). Regarding the first prong, in order to recover on a theory of

conversion, at the time of the conversion, “one must . . . either have some

character of ownership interest in the specific property converted or be in legal

2 According to Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), we must apply the

substantive law of the forum state—including choice-of-law rules, which may dictate applying

another state’s laws. Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 705 n.2

(5th Cir. 2009). For conversion, the parties agree that Texas law applies, and Texas indeed

has the most significant relationship to the conversion alleged since the conduct giving rise

to Appellants’ claim took place in Texas. Cf. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848

(Tex. 2000) (holding that Texas uses the most significant relationship test to decide choice-oflaw issues). Therefore, we apply the law of Texas to Appellants’ conversion claim.

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possession of it or then entitled to its possession.” Mack v. Newton, 737 F.2d

1343, 1355 (5th Cir. 1984). 

Here, Appellants cannot maintain an outright conversion claim because

they fail the first element of conversion: possession or the right to it. Appellants

cannot satisfy the first prong of the conversion test because, at the relevant

times—namely, when Simply Goodies wrongly delivered the equipment to

Sunrise and when the equipment was thereafter transferred to

Mexico—Appellants had already surrendered both actual possession and their

right to possession. They did so through the transfer of their lease to Sweet

Ventures in 2005. The transfer of interest to Sweet Ventures meant that

Appellants no longer had actual possession of the equipment or the right to

possess it when subsequent transfers were made in 2007 and 2008. 

In their brief, Appellants make no effort to dispute this unavoidable

conclusion. Instead, their brief focuses on inapposite statements of law and

intimations regarding what the district court did and did not determine.3 Since

transferring their interest in the lease transferred actual possession and the

legal right to possess the packaging equipment, Appellants did not accrue an

outright conversion claim when the equipment was subsequently re-transferred. 

There being no dispute of material fact, Appellees are entitled to judgment as a

matter of law on Appellants’ outright conversion claim. See Fed. R. Civ. P. 56(a). 

3 For instance, Appellants insinuate that the district court held that conversion only

occurs through a taking, rather than including instances of wrongful possession. The district

court made no such pronouncement. Appellants also vaguely suggest that the district court

incorrectly stated that only one act of conversion occurred. This is also not the case. See Hyde

& Hyde, Inc. v. Mount Franklin Food, LLC, No. EP–11–CA–08–FM, 2012 WL 7062626, at *4

(W.D. Tex. Apr. 30, 2012) (“[Appellants] contend that the conversion occurred when Simply

Goodies wrongly delivered the equipment to defendant Sunrise and when the equipment was

subsequently transferred to Mexico.” (emphasis added)).

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B

Since Appellants did not have actual possession or the right to possession

at the time Simply Goodies delivered the equipment to Sunrise or when the

equipment was then transferred to Mexico, their conversion claim can only

survive summary judgment if they acquired GE Capital’s conversion claim when

the two companies executed the 2010 settlement, since GE Capital owned the

equipment when Simply Goodies wrongly delivered it to Sunrise and when the

equipment was then moved to Mexico. While the parties’ arguments before the

district court relied on Texas law regarding assignment of claims, the district

court ultimately analyzed Appellants’ assignment claim under Connecticut law

since the 2010 settlement contained a choice-of-law provision stating that

Connecticut law would control the agreement. 

In Texas, under the concept of “party autonomy,” the Court “respect[s] the

parties’ choice of law unless the chosen law has no relation to the parties or the

agreement, or their choice would offend the public policy of the state whose laws

otherwise ought to apply.” Salazar v. Coastal Corp., 928 S.W.2d 162, 166 (Tex.

App.—Houston [14th Dist.] 1996, no writ). GE Capital’s headquarters are

located in Norwalk, Connecticut, thus the chosen law has a relation to the

parties. Because this choice of law does not offend the public policies of Texas,4

we turn to Connecticut law in deciding whether the 2010 settlement assigned to

Appellants GE Capital’s conversion cause of action.

As the district court correctly noted, this question involves two inquiries:

first, whether Connecticut law permits the assignment of a conversion claim;

and second, if so, whether the 2010 settlement agreement between Appellants

4 Although not without limit, “Texas law favors free assignment of claims. Indeed, for

over 100 years the Texas Legislature has expressly recognized that the sale of claims in Texas

is permissible.” Mallios v. Baker, 11 S.W.3d 157, 172 (Tex. 2000) (Enoch, J., concurring)

(emphasis omitted).

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and GE Capital effected such a transfer. An assignment is a contract between

the assignor and assignee that is interpreted according to the rules of contract

construction. Schoonmaker v. Lawrence Brunoli, Inc., 828 A.2d 64, 79 (Conn.

2003). Connecticut allows the assignment of causes of action, see Conn. Gen.

Stat. § 52–118,5

but only within the limits of public policy, see Gurski v.

Rosenblum & Filan, LLC, 885 A.2d 164, 167–71 (Conn. 2005). In any event, the

parties must intend to assign the cause of action, and the assignment “must be

described with such particularity as to render it capable of identification.” 

Dysart Corp. v. Seaboard Sur. Co., 688 A.2d 306, 310 (Conn. 1997).

While Connecticut broadly permits the assignment of contract rights,

Connecticut courts closely scrutinize the attempted assignment of tort claims. 

Gurski, 885 A.2d at 167–68. The reluctance to permit the assignment of tort

claims stems from well-settled common-law precedent as well as public policy

concerns. Id. at 168; Dodd v. Middlesex Mut. Assurance Co., 698 A.2d 859, 864

(Conn. 1997). These concerns include discouraging “unscrupulous interlopers

and litigious persons . . . from purchasing claims for pain and suffering and

prosecuting them in court as assignees[,]” as well as the “too personal . . .

nature” of claims for injuries sustained by deceased plaintiffs. Dodd, 698 A.2d

at 864. 

However, these public policy concerns are not implicated by the

assignment of tort claims involving property instead of people. When a tort is

committed against a person, the injury is fixed to that individual; when a tort

involving property occurs, the harm is claimed by whoever owns or has the right

to the property at issue. This position finds support in Connecticut Supreme

5 Section 52–118 provides in full: “The assignee and equitable and bona fide owner of

any chose in action, not negotiable, may sue thereon in his own name. Such a plaintiff shall

allege in his complaint that he is the actual bona fide owner of the chose in action, and set

forth when and how he acquired title.”

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Court precedent. In Dodd, the Connecticut Supreme Court endorsed a

Restatement provision that carves a specific exception for the assignment of tort

claims involving property. The Connecticut Supreme Court cited the

Restatement for the proposition that, “[a]n assignment of a claim against a third

person . . . is illegal and ineffective if the claim is for . . . damages for an injury

the gist of which is to the person rather than to property . . . .” Restatement

(First) of Contracts § 547 (1932) (quoted in Dodd, 698 A.2d at 864) (emphasis

added). This provision explicitly states that the broad prohibition on assignment

of tort claims is specific to personal injury torts, rather than torts involving

property. On this basis, we conclude that Connecticut law permits the

assignment of conversion claims. We now turn to whether GE Capital in fact

assigned its conversion claim to Appellants.

Connecticut case law makes clear that an assignment—whether of a thing,

debt, or cause of action—“must be described with such particularity as to render

it capable of identification.” Schoonmaker, 828 A.2d at 79. On this basis alone,

it would seem that Appellants’ 2010 settlement with GE Capital did not convey

GE Capital’s conversion claim. The agreement itself makes no reference at all

to conveying GE Capital’s claims. Admittedly, as Appellants point out, the

agreement uses broad language, referring to “all” of GE Capital’s rights and

interests in the equipment. Connecticut law, however, requires more. It is not

enough that the language of an assignment conceptually encompass whatever

claim is at issue. Rather, Connecticut law requires specificity. Broad

pronouncements do not describe the assignment of claims “with such

particularity as to render [them] capable of identification.” Schoonmaker, 828

A.2d at 79.

Moreover, two 19th-century Connecticut cases discussed by the district

court and the parties suggest that assignments of claims require specific,

identifiable references to the claims being assigned. The first case, Whitaker v.

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Gavit, 18 Conn. 522 (1847), involved a claim for damage to a propeller owned by

an insolvent individual. The owner of the property assigned property and rights

for the benefit of his creditors, but the owner’s claim regarding the propeller was

deemed not assigned because it was erroneously left out of the assignment. 

Whitaker, 18 Conn. at 526 (Since the assignment did not, “by any general or

particular descriptive language, includ[e] this claim . . . [the claim was] not

assigned . . . The court cannot make an assignment for [a party], whether the

omission is attributable to design or mistake.”). As the Supreme Court of Errors

of Connecticut—the precursor to the Connecticut Supreme Court—held, the

claim was entirely assignable, but the failure to specifically include it in the

assignment proved fatal: “[T]his claim might have been assigned, had it been

specific in the agreement.” Id. Tort claims involving property can be assigned,

but only if “specified in the agreement.” Id. at 526.

The second case, Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112

(1874), involved a quitclaim conveyance of land and the attempt to assign a

cause of action related to the land. In that case, the court held that quitclaim

deeds are capable of assigning claims, but only if the claim is specifically

described. Miller, 41 Conn. at 129 (“[The landowner] conveyed the land by a

quitclaim deed in the ordinary form, but he did not assign or attempt to assign

a chose in action. Had he done so, . . . [the plaintiffs] claim in this respect might

have been sustained.”). While Appellants spend many pages recounting the facts

of Whitaker and Miller, they do not refute the black letter law described therein. 

Under Connecticut law, an assignment of a cause of action can only be perfected

if the cause of action is described with specificity. Schoonmaker, 828 A.2d at 79. 

Having failed to do so in their 2010 settlement, Appellants did not acquire GE

Capital’s conversion claim.6 There being no dispute of material fact, Appellees

6

In addition to the amendment proffered in an attempt to overcome summary

judgment, see supra Part III, Appellants offered a separate document to the district court

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are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The district

court correctly granted summary judgment, and we affirm.

V

For the reasons discussed above, we hold that no genuine dispute of

material fact exists and Appellees are entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(a). We also hold that expansion of the record on appeal is not

warranted given the facts. Fed. R. App. P. 10(e)(2)(C). Therefore, we DENY

Appellants’ motion to expand the record and AFFIRM the district court’s grant

of summary judgment.7 

intended to “clarify” the terms of the 2010 settlement. We hold, as the district court did, that

this separate document has no bearing on our interpretation ofthe 2010 settlement. First, the

2010 settlement contains a merger clause; and Connecticut law observes the “general rule of

contract law” that merger clauses likely signify the complete integration of a contract.

Tallmadge Bros., Inc. v. Iroquois Gas Transmission Sys., L.P., 746 A.2d 1277, 1291 (Conn.

2000). Second, none of the exceptions to the bar of parol evidence apply: the parties had equal

bargaining power,the settlement appears adequately negotiated, no allegations of fraud exist,

and the settlement is unambiguous. See Alstom Power, Inc. v. Balcke–Durr, Inc., 849 A.2d

804, 811 (Conn. 2004); Tallmadge Bros., 746 A.2d at 1291–92. Therefore, our summary

judgment determination is restricted to the terms of the 2010 settlement.

7 Because we deny Appellants’ motion to expand the record, we DENY Appellees’

motion to strike a portion of Appellants’ reply brief as moot.

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