The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00800-CV
Ebonee Thrower, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-16-004486, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
MEMORANDUM OPINION
The 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.
BACKGROUND
The 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.
ANALYSIS
We 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
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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)).
The 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.
In 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
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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 material fact.
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Thrower 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.
In an 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.
CONCLUSION
We 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 for attorney’s fees. As modified, the judgment is affirmed.
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__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Smith
Modified and, as Modified, Affirmed
Filed: December 31, 2019
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