Reversed and Remanded and Opinion filed January 31, 2012.




                                        In The

                       Fourteenth Court of Appeals

                                 NO. 14-11-00259-CV


                         MERRY HOMES, INC., Appellant

                                           V.

                                 LUC DAO, Appellee


                       On Appeal from the 151st District Court
                               Harris County, Texas
                         Trial Court Cause No. 2009-25771


                                   OPINION

      In this appeal from a summary judgment granted in favor of appellee, Luc Dao,
appellant Merry Homes, Inc. contends the trial court erred in concluding that Dao’s claim
for money had and received was subject to a four-year statute of limitations. Because a
claim for money had and received is a quasi-contract action based on a promise implied
in law, not an action for breach of contract, it is governed by the two-year statute of
limitations for ―taking or detaining the personal property of another.‖ Tex. Civ. Prac. &
Rem. Code Ann. § 16.003(a) (West 2002). Accordingly, we reverse and remand for
further proceedings.
                                    BACKGROUND

        In May 2005, Chi Hung Luu leased property from Merry Homes to operate a night
club. Luu paid $6,000 under the lease; Luc Dao paid Merry Homes an additional $6,000
to secure the leased property. Dao was not a party to the lease contract.

        Luu later discovered that the property was not eligible for use as a bar or night
club because it was located too close to a school.        Luu sued Merry Homes for a
declaration that the lease was void and to recover the money he had paid. The trial court
declared the lease void and entered a final judgment on February 9, 2009. The trial court
awarded Luu the $6,000 he had paid under the lease, but because Dao was neither a party
to the lease nor to the declaratory judgment action, it did not award Dao the $6,000 he
had paid Merry Homes.

        Dao sued Merry Homes on April 16, 2009, seeking to recover his $6,000 as
money had and received. He moved for summary judgment on his claim in February
2011.    Merry Homes did not file its own motion for summary judgment, instead
responding to Dao’s motion by asserting that the two-year statute of limitations provided
by section 16.003(a) of the Texas Civil Practice and Remedies Code applied to Dao’s
claim. Thus, Merry Homes contended that Dao’s claim was barred because it accrued
when he paid the money to Merry Homes in May 2005, which was four years before Dao
filed suit.

        The trial court granted Dao’s summary judgment. In its final judgment awarding
Dao $6,000, it stated:

        The Court is persuaded by the clear, unequivocal language of Amoco
        Production Co. v. Smith, 946 S.w.2d 162, 164–65 (Tex. App.—El Paso
        1997, no pet.), that a cause of action for ―money had and received is an
        action for debt, governed by the four-year statute of limitations.‖ The
        Court recognizes the argument that Defendant has asserted regarding the
        language about unjust enrichment and the Supreme Court’s holding in
        Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870–71
        (Tex. 2007) regarding a 2 year statute of limitations for unjust enrichment
        actions. However, the two causes of action are not identical. The Court

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       will not conclude that a two-year statute of limitations applies to ―money
       had and received‖ absent a clear statement from our appellate courts to that
       effect.
Merry Homes timely appealed the trial court’s final summary judgment.

                                       ANALYSIS

       In a single issue, Merry Homes asserts that the trial court erred in determining that
the four-year statute of limitations period applies to a claim for money had and received.

       We review a trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, we take
as true all evidence favorable to the nonmovant, indulging every reasonable inference,
and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 549 (Tex. 1985).

       Money had and received is an equitable doctrine designed to prevent unjust
enrichment. London v. London, 192 S.W.3d 6, 13 (Tex. App.—Houston [14th Dist.]
2005, pet. denied). This cause of action arises when a party obtains money that, in equity
and good conscience, belongs to another. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex.
App.—Houston [14th Dist.] 2001, no pet.). A claim for money had and received is not
based on wrongdoing; rather, the only question is whether the defendant holds money
that, in equity and good conscience, belongs to another. See London, 192 S.W.3d at 13.

       Because money had and received is an equitable doctrine designed to prevent
unjust enrichment, the proper statute of limitations for such a claim is that applicable to
claims for unjust enrichment. Cf. Autry v. Dearman, 933 S.W.2d 182, 190 n.7 (Tex.
App.—Houston [14th Dist.] 1996, writ denied) (noting that plaintiff’s claims for money
had and received and unjust enrichment would be barred by the two-year statute of
limitations). In a series of three decisions, the Supreme Court of Texas has concluded
that unjust enrichment claims are governed by the two-year statute of limitations
provided by section 16.003 of the Texas Civil Practice and Remedies Code. See Elledge
v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 871 (Tex. 2007) (per curiam);

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Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737 (Tex. 2001); HECI Exploration
Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998). Indeed, in Elledge, the Supreme Court
declared ―categorically‖ that ―[u]njust enrichment claims are governed by the two-year
statute of limitations in section 16.003 of the Civil Practice and Remedies Code.‖ 240
S.W.3d at 871. In light of this clear precedent, we hold that Dao’s claim for money had
and received is subject to the two-year statute of limitations provided by section 16.003
of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)

      For the first time on appeal, Dao asserts that his cause of action to recover the
$6,000 accrued only once the lease was declared void in the earlier lawsuit between Luu
and Merry Homes. But because he did not make this argument in his summary-judgment
motion, we may not consider it on appeal. See Tex. R. Civ. P. 166a(c). Accordingly, we
sustain Merry Home’s sole issue on appeal.

                                    CONCLUSION

      We have sustained Merry Home’s issue and hold that the two-year statute of
limitations applies to Dao’s claim for money had and received. Because Merry Homes
did not file its own summary-judgment motion conclusively establishing the accrual date
of Dao’s claim, however, we reverse and remand to the trial court for further
proceedings.




                                         /s/       Adele Hedges
                                                   Chief Justice


Panel consists of Chief Justice Hedges and Justices Brown and Christopher.




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