       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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