Summary Calendar CONNY BHATCH, III v. Wal-Mart Stores Inc

* 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that this opinion should not be published and is not precedent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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United States Court of Appeals
Fifth Circuit
F I L E D
September 14, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50384
Summary Calendar
CONNY B HATCH, III
Plaintiff - Appellant
v.
WAL-MART STORES INC
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas, Austin
USDC No. 1:05-CV-74
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Conny B. Hatch appeals the district
court’s grant of summary judgment in favor of defendant-appellee
Wal-Mart Stores, Inc. After a de novo review of the record, we
AFFIRM the judgment of the district court.
Hatch’s first point of error is that sufficient evidence
exists upon which a reasonable trier of fact could include

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1 The property at issue in this lawsuit is the settlement
proceeds from a prior lawsuit between the parties.
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defendant-appellee Wal-Mart Stores Inc. (“Wal-Mart”) converted
Hatch’s property.1 The only evidence referred to by Hatch is a
handful of tax documents and papers from the Social Security
Administration. The district court held that because this
evidence does not suggest that Wal-Mart exercised dominion and
control over Hatch’s property, Hatch did not present sufficient
evidence to support a claim of conversion. We agree with the
district court. See Waisath v. Lack’s Stores, Inc., 474 S.W.2d
444, 447 (Tex. 1971) (holding a cause of action for conversion is
based on “[t]he 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.”).
Hatch’s second point of error (in part a rehash of the
first) is that sufficient evidence exists that Wal-Mart violated
provisions of the prior settlement agreement between the parties
and invaded Hatch’s privacy. The district court concluded that
Hatch presented no evidence to indicate Wal-Mart did not comply
with the payment provisions of the settlement agreement and that
the evidence Hatch did present suggested Hatch received all he
was entitled to under the agreement. Additionally, the district
court held that the evidence was insufficient to establish Wal-
Mart breached the confidentiality provisions of the settlement
because the only evidence submitted by Hatch to support this

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claim was hearsay. See Fowler v. Smith, 68 F.3d 124, 126 (5th
Cir. 1995) (“Evidence on summary judgment may be considered to
the extent not based on hearsay.”). The district court also
determined that because Hatch did not provide evidence that any
facts made known were communicated to the public at large, the
evidence was insufficient to support a cause of action for
invasion of privacy. See Indus. Found. of the South v. Tex.
Indus. Acc. Bd., 540 S.W.2d 668, 683-84 (Tex. 1976) (holding that
the publication of a private fact theory of invasion of privacy
requires a showing that the private facts were communicated to
the public at large, not just a small group of persons). We
agree with the district court.
Hatch’s third point of error (again, a rehash) is that the
district court erroneously granted summary judgment because
genuine issues of material fact remain as to whether Wal-Mart
complied with settlement provisions. Summary judgment is proper
when, viewing the evidence in the light most favorable to the
nonmovant, “there is no genuine issue of any material fact” and
the moving party is “entitled to judgment as a matter of law.”
Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States,
832 F.2d 1358, 1364; FED. R. CIV. P. 56(c). Once the moving
party establishes that there is no genuine issue, the burden
shifts to the nonmoving party to produce evidence of the
existence of a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 321 (1986). The nonmoving party cannot

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satisfy his summary judgment burden with conclusory statements,
speculation, and unsubstantiated assertions. Douglass v. United
Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
The district court held no genuine issues of material fact
remain because the evidence submitted by Hatch supports Wal-
Mart’s theory that the accounting problems resulted from
overpayment of Social Security and Medicare taxes and
underpayment of federal income taxes. Further, the district
court noted that the discrepancy pointed to by Hatch between the
year-to-date total earnings on his paystubs and the taxable
income reported to the IRS on the W-2 is equivalent to the amount
Wal-Mart paid in tax-deductible health and disability insurance
benefits. After reviewing the record, we agree with the district
court that no genuine issue of material fact exists. Hill has
not met his burden to produce evidence of the existence of a
genuine issue for trial. See Celotex Corp., 477 U.S. at 321.
Hill did not provide more than conclusory statements,
speculation, and unsubstantiated assertions. See Douglass v.
United Servs. Auto Ass’n, 79 F.3d at 1429.
For the foregoing reasons, we AFFIRM the district court’s
judgment in favor of Wal-Mart. The mandate shall issue forthwith,
and the Clerk shall accept no further filings from Hatch.

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