Court of Appeals of Texas, Third District, Austin
THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO.
C-1-CV-16-004486, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
Chief Justice Rose, Justices Triana and Smith
D. Triana, Justice
trial court granted summary judgment in favor of the State of
Texas on its claim for money had and received against Ebonee
Thrower. We will modify the trial court's summary
judgment and affirm the judgment as modified.
Higher Education Coordinating Board (the Board) disbursed the
proceeds of two Texas B-On-Time student loans to Dallas
Baptist University (the University), and the University
applied the loan proceeds to Thrower's account. The total
outstanding amount of the loans was $13, 436.09. The
University applied $4, 590.74 to Thrower's tuition or
other expenses and disbursed $8, 872.86 to Thrower as a
"Refund to Student." Thrower sent six checks as
payment on the loans, but they were each returned unpaid by
Thrower's bank. When Thrower did not further attempt to
repay the loans, the State sued her for breach of contract to
recover on the promissory note. After the State moved for
summary judgment on its claim, Thrower sought and was granted
leave to amend her answer to assert that she never signed the
loan applications. In response to Thrower's amendment,
the State added a claim for money had and received and again
moved for summary judgment on its newly added claim. The
State supported its motion for summary judgment with an
affidavit and documents from both the University and the
Board showing that the loans were disbursed to the University
and credited to Thrower's account. The State's
evidence also included a deposition on written questions in
which a University employee testified that proceeds shown as
"Refund to Student" were disbursed to Thrower. In a
verified denial and affidavit accompanying her response to
the State's motion, Thrower stated that she never signed
the loan applications nor received the benefit of the loans.
The trial court granted summary judgment in favor of the
State on the claim for money had and received.
review the trial court's summary-judgment ruling de novo.
Beck v. Law Offices of Edwin J. (Ted) Terry, Jr.,
P.C., 284 S.W.3d 416, 425 (Tex. App.-Austin 2009, no
pet.) (citing Joe v. Two Thirty Nine J.V., 145
S.W.3d 150, 156-57 (Tex. 2004)). To prevail on its
traditional motion for summary judgment, appellee had the
burden of proving "there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law." Id. at 425-46 (citing
Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985)). In deciding whether a
disputed fact issue exists to preclude summary judgment, we
treat evidence favorable to the non-movant as true, and we
must resolve every doubt and indulge all reasonable
inferences in the non-movant's favor. Id.
(citing Nixon, 690 S.W.2d at 548-49). When the order
granting summary judgment does not specify the ground or
grounds relied on for the ruling, summary judgment will be
affirmed on appeal if any of the theories advanced are
meritorious. Id. (citing State Farm Fire &
Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993)).
trial court granted the State's motion for summary
judgment based on the claim for money had and received.
"An action for money had and received is equitable in
nature and belongs conceptually to the doctrine of unjust
enrichment." Vista Med. Ctr. Hosp. v. Texas Mut.
Ins., 416 S.W.3d 11, 17-18 (Tex. App.-Austin 2013, no
pet.) (citing Best Buy Co. v. Barrera, 248 S.W.3d
160, 162 (Tex. 2007) (per curiam)); see Edwards v.
Mid-Continent Office Distribs., L.P., 252 S.W.3d 833,
837 (Tex. App.-Dallas 2008, pet. denied). "The doctrine
of unjust enrichment applies the principles of restitution to
disputes that are not governed by a contract between the
parties." Edwards, 252 S.W.3d at 837. A
"claim for money had and received seeks to restore money
where equity and good conscience require restitution."
Id.; see Best Buy, 248 S.W.3d at 162. The
claim is not premised on wrongdoing, but seeks to determine
to which party, in equity, justice, and law, the money
belongs. Edwards, 252 S.W.3d at 837.
support of summary judgment on its money had and received
claim, the State provided documents from the University and
the Board showing disbursements made to and received by the
University and credited to Thrower's account. Several
entries labeled "Refund to Student" account for $8,
872.86 of the money at issue, and the remainder was credited
against amounts Thrower owed to the University. In a
deposition on written questions, a University employee
testified that proceeds shown as "Refund to
Student" were disbursed to Thrower. Thus, the State
showed that the loan proceeds were either paid to Thrower or
credited to her account for her benefit. Thrower does not
dispute that she attended the University at the relevant
times, and she explains in her brief that these items
"may have been enough" to support summary judgment
in favor of the State were it not for her affidavit. Thrower
alleges that her affidavit creates a fact issue that
precludes summary judgment because it states that she did not
sign the loan applications and that she did not
"personally receive" the money or "receive the
benefit of" the money disbursed to the University.
Recovering on an action for money had and received does not
require Thrower to have signed loan documents because it is a
claim in equity, not contract. See Edwards, 252
S.W.3d at 837. However, we must determine whether
Thrower's bare statements that she did not
"personally receive" the money or benefit from it
precludes summary judgment. The State argues that this
portion of Thrower's affidavit is conclusory and possibly
subjective, and therefore is not competent summary judgment
evidence. We agree. To be competent summary judgment
evidence, an affidavit must contain specific factual bases,
admissible in evidence, upon which its conclusions are based.
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984); see Tex. R. Civ. P. 166a(f) (affidavits
"shall set forth such facts as would be admissible in
evidence"). "Affidavits containing unsubstantiated
factual or legal conclusions or subjective beliefs that are
not supported by evidence are not competent summary-judgment
proof because they are not credible or susceptible to being
readily controverted." Sprayberry v. Siesta MHC
Income Partners, L.P., No. 03-08-00649-CV, 2010 Tex.App.
LEXIS 2517, at *12 (Tex. App.-Austin Apr. 8, 2010, no pet.)
(mem. op.) (citing Ryland Grp., Inc. v. Hood, 924
S.W.2d 120, 122 (Tex. 1996) (per curiam)). "Conclusory
statements in affidavits are not sufficient to raise fact
issues because they are not credible or susceptible to being
readily controverted." Lopez v. Bucholz, No.
03-15-00034-CV, 2017 Tex.App. LEXIS 3071, at *9 (Tex.
App.-Austin Apr. 7, 2017, no pet.) (mem. op.). In this
instance, Thrower's unsupported and conclusory statements
that she did not "personally receive" the money and
that it did not benefit her do not raise a genuine issue of
further asserts that summary judgment was nonetheless
inappropriate because the State's claim for breach of
contract based on the same facts should have remained
pending. However, the State pleaded money had and received as
an alternative to breach of contract in response to
Thrower's assertion that she had not signed the contract,
and both parties agree that (1) the State could not recover
for both claims, and (2) the State's motion for summary
judgment rested exclusively on its claim for money had and
received. Rather than leaving a claim pending, the State
pursued its alternate theory through summary judgment.
action for money had and received, the State could only
recover for the amounts that were disbursed to Thrower's
account, which amounted to $13, 436.09. The trial court's
judgment awarded the State $13, 875.78, plus prejudgment
interest based on that amount, late charges, post-judgment
interest at the rate of five percent per annum, and $10, 000
for attorney's fees. The $13, 875.78 included $416.40 and
$23.29 in late fees. The State concedes that it could not
recover for late fees and origination fees, and the State
further agreed to waive its right to prejudgment interest to
avoid a remand. Accordingly, we conclude that the judgment
should be modified to exclude the amounts for origination
fees, late fees, and prejudgment interest.
modify the judgment to allow the State to recover $13, 436.09
on its claim for money had and received plus post-judgment
interest at the rate of five percent per annum and $10, 000