## In the Court of Appeals Second Appellate Dis trict of Texas at F or t Worth

___________________________ No. 02

- 20

- 00415

- CV

___________________________

On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096

- 315146

- 20
Before Sudderth, C.J.; Birdwell and Bassel, JJ.

Me morandum Opinion by Justice Birdwell



### LAKXN I NCOME 

### , I NC



### . , Appellant

V


### . TLC H OSPITALITY 

### , LLC , Appellee2 MEMORANDUM O PINION Appellee TL C Hospital ity, LLC sued Appellant LAKXN Income, Inc. for money had and received , among other claims

. When TLC moved for summary judgment, LAKXN attempted to manufacture a fact issue on t he defense of offset by arranging for an affiliate to parti ally assign a claim from anoth er lawsuit t o LAKXN.
The trial c ourt granted summary judgment in favor of TLC, and LAKXN appealed

. On appeal, LA KXN asserts that it created a fact issue on its offset defense
sufficient to survive summary judgment. We side against LAKXN due to inadequate briefing , deficient summary judgment proof, and the balance of the equities. We therefore affirm the summary judgment in TLC’s favor.
I. B ACKGROUND TLC owned an apar tment complex in G rapevine ( the Property). This s uit is
the latest of many rel ated to the Property.
The Initial Suit: The subject of an earlier suit was a 2012 agreement whereby TLC agreed to sell the Property to Pillar In come Asset Management, Inc. TLC Hosp.,
LL C v. Pillar Income Asset Mgmt., Inc. , 57 0 S.W.3d 749, 757 (Tex. App.

— Tyler 2018, pet. denied). There were complications in the sale, which led TLC to back out. Id.
The trial court determined t hat TLC had breached the contrac t and awarded sp eci fic performance and other relie f to Pillar, and that ruling was affirmed on appeal. Id.3 In 2019, TLC complied with the specific performance judgment by selling the Property to Pillar’s assignee , LAKXN. LAKXN l ater sold the Pro p e rty to Grapevine
Investmen ts , L LC

. The Equitable Accountin g Suit: In 2018 , Pillar also sued TLC for an equitable accounting in an effort to obtain all the income that TLC collected from the
P roperty between 2016 and when the sa le was completed , along with compensatio n for miss ing out on a more favorable interest rate due to TLC’s dela y in closing the
sale

. That suit is ongoing.
The Tax S uit: Meanwhile, in another suit, TLC also contest ed its 2018 tax

assessment for the Propert y . In 2019, TLC won a $36,487.52 tax refund.
This Sui t: By mistake, the tax assessor sent $26,975.52 of the refund to Grapevine Investments rather than TLC. Grapevine Investments t hen forwarded the

re fund on to LAKX N , also by mist ake. LAKXN refused to return the re fund to TLC , so TLC sued LAKXN for money had and received, unjust enrichment, breach of contract, and constructive trust. TLC moved for su mmary judgmen t on its claim for money had and rece ived.
To defeat the s ummary judgment , Pillar partially assigned its equitable accounting claim to its affili ate LAKXN to the extent of $26,975.52 , the same amount
as the tax refund that LAKXN had refused to retur n to TLC

. LAKXN relied on that assigned claim to raise the defense of offset

. LAKXN contended that beca use TLC4 owed $26,975.52 to LAKXN on the assigne d claim , this should cancel out and off set the $26 , 975.52 that LAKX N owed T LC

. The trial court gran ted a summary judgment fo r $26,975.52 to TLC, and LAKXN appealed.
II. S UMMARY J UDGMENT S TANDARD In reviewing a summary judgment, we view the evidence in th e light most
favorable to the nonm ovant, i ndulge every reasonable inference in favor of the nonmovant, and re solve any doubts against the motion. Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017). A plaintiff satisfies its ini ti al summary judgment burden if it concl u s ively proves all essential elements of its cause of action

. Charle s Glen Hyde, Nw. Reg’l Airport, Inc. v . Nw. Reg’l Airport Prop. Owners Ass’n, Inc. , 583 S.W.3d 644, 648 (Tex. App.

— Fort Worth 2018, pet. denied).
I f the movant carries its initial b urden, “ the burden shifts to the nonmovant to
rais e a genuine issue of mate rial fact precluding summary judgment. ” Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018). Where the nonmovant relies on an
affirmative defe ns e to defeat summary judgment, th e nonm o v ant has the burden in its
summary judgment response to present evid ence sufficient to raise a fact issue on each element of the affirmative defense. See Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 593 (Tex. 201 7)

.5 III. D ISCUSSION “[

A

] cause of action f or money had and received is ‘less restric ted and fettered by techn ical rules and formalities than any ot her form of action. It aims at the abstract justice of the case and looks solely to the inquiry of whether t he defendant holds money that belo ngs to t he plaintiff.’” GRCDallasHomes LLC v. Cal dwell , 619 S.W.3d 301, 31 0 (Tex. App.

— Fort Worth 2021, pet. filed ) (cleaned up) (quoting Staats
v. Miller , 243 S.W.2d 686, 687

– 88 (Tex. 1951))

. “ To prove a claim for money h ad and received, a plaintiff mus t show t hat a defendant holds money which in equit y and good conscience bel ongs to him.” Id. (quoting Plains Exp l. & Prod. Co. v. Torch Energy
Advisors Inc. , 473 S.W.3d 296, 302 n.4 (Tex. 2015) )

. For this type of claim , w e afford
the trial court broad di screti o n in balancing the equities of the case. I d. “In defending against such a claim, a defendant may present any facts and raise any defenses that would deny the claimant ’ s right or show that the claimant should not r ec over.” Best Buy Co. v. Barrera , 248 S

. W .3d 160, 162 (Tex. 2007) (per curiam).
LA KXN does not dispute that TLC carried its initial summary judgment
burden to conclusively prove its claim for money had and received t hrough its
evidence concern ing LAKXN’s a ppropriation of TLC’s tax refund

. 1 I nst ead,
LAK XN contends that it presented evid ence sufficient to raise a fact issue on its
defense o f offset. We therefore turn to the question of whether LAKXN created a

1 We note, howe ver, that TLC did not sue th e tax assessor for the money it never sent to TLC

.6 fact issue on that defense so as to defeat TLC ’s entitlement to summary judgment

. See
A ction To wing, Inc. v. Mint Leasing, Inc. , 451 S.W.3d 525, 531 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) (same approach); Goodenberger v. Ellis , 343 S.W.3d 536, 540 (Tex. App.

— Dallas 2011, pet. denied) (same app ro ach). Setoff (or offset) “is the doctrin e of bri nging into the presence of each ot her the obligation of A t o B and B to A and by the judici al action of the court making each obligation extinguish the other.” J. Michael Ferguson, P.C. v. Ghrist Law Firm,
P

LLC , No. 02

- 18

- 00332

- CV, 2021 WL 2006321 , at *2 7 (Tex. App.

— Fort Worth May 20, 202 1, pet. a bated ) (mem. op.) (cleaned up). If the setoff is allowed, the amount that the plaintiff would recover from the defendant is reduced by the amount that the plainti ff owes the defendant. Bandy v. Fi rst Stat e Bank, Overton , 835 S.W.2d 609 , 618 (Tex. 1992) (op. on reh’g); J. Michael Ferguson , 2021 WL 20063 21, at *26. The doctrine’s aim is “to avoid a multiplicity of suits when the debts are mutual,” Branscum
v. Reese , 219 S.W. 871, 872 (T ex . App.

— Fort Wo rth 1919 , no writ), and to adjust the
debts in net effect so as “to permit executory process to be enforced only for the balance that may be due.” Nalle v. Harrell , 12 S.W.2d 550, 551 (Tex. [ Comm’n Op.] 1929); Balfour B eatty Rail, Inc. v. Ka n . City S. Ry. Co. , 173 F. Supp. 3d 363, 406 (N.D. Tex. 2016) , aff’d as modified a nd remanded , 725 F. App’x 256 (5th Cir. 2018). A defendant may raise a setoff either “as a defense or counterclaim.” Bandy , 835 S.W.2d at 618; J. Mic ha el Ferguson , 2021 WL 2 006321, at *26; see Tru eheart v.
Braselton , 875 S.W.2d 412, 4 15 (Tex. App.

— Corpus Christi

– Edinburg 1994, no writ).7 Thus, a defendant may defeat a plaintiff’s entitlement to summary judgment by raising
a fact issue on setoff if it i s employed as an affir ma tive defens e. See Stuc ki v. Noble , 963 S.W.2d 776, 781 (Tex. App.

— San Antonio 199 8, pet. denied) (“[T]he b urden was upon Stucki to produce competent summary judgment proof sufficient to raise a fact question regarding whether offse ts or payments had bee n credited to the note.”)

. However, LAKXN’s briefing of th e set off issue leaves much to be desired

. See
Tex. R. App. P. 38.1(i). T he whole of LAKXN’s argument on this front is contained
in two sentences , which assert without elabora ti on that LAKXN’s evid en ce creates a fa ct issue

. 2 LAKXN then broadly cites to a 130

- page swath of the record, but LAKXN offers no explanation of what evidence it contains or how it create s a fact
issue. Also absent is any discussion of equitable accounti ng , what it en tails, o r h ow it

m ight entitle LAKXN to the relief it seeks

. 3 We liberally c onstrue briefs, but this

2 Those two sentences are as follows:
H e re, the evi de nce , at the very least, ra i ses a fact i ssue that TL C owes Pillar more tha n the $26,975.52 awarded to TLC by the trial court

. . . and that Pi llar validl y assigned a limited portion of its claims against TLC to [LAKXN] in the amount of $26,975.52

. . . . Ac cordingly, there is a ge nuine issue of material fac t as t o whether the mo ney in equity and good conscience belongs to TLC be cause, as set for th above, t he re is a genuine issue of material fact that [LAKXN] is entitled to the funds as a setoff as Pillar’s l imited assignee of the a mount of the t a x refund, $2 6,975. 52, as an offset or se toff.

3 “ An accounting may be a particular re medy sought in co njunction w it h another cause of action or it may be a suit in equity. ” Yeske v. Piazza Del Arte, Inc. , 513 S.W.3 d 652, 674 (Tex. App.

— Hous ton [14th Dist

. ] 2016, n o p e t.)

. “ [ W ] hether to g rant ‘ an accounting is within the discretion of the trial court. ’ ” Williams v. W ells Fargo8 cursory sort of argument stretches that liberality to its breaking point

. See Lion Copolymer Holdings, LLC v. Lion Polymers, LLC , 614 S.W.3 d 729, 732 ( Te x. 2020) ( p er curi am)

. The problem is compounded by the unex plained gaps in LAKXN’s proof concerning the setoff it seeks in this suit , which cover s the period of 201 6 to 201 9

. In support of its defense, LAKXN primarily relies on an unsworn de claration fr om Pilla r’ s employ ee Rhys Heinsch , along with calculations th at Heinsch draft ed and
testim ony that he gave in a prior trial.
At the prior trial, Heinsch testified that when TLC breached the contract and
refused to sell t he P rope rt y to Pil lar as previously agreed, this caused Pilla r to lose the

re ntal income t hat it would have otherwise collected between 2013 and 2015

. According to Hein s ch, TLC’s breach also caused Pillar and LAKXN to miss out on a
more favora bl e interes t rate
. Hein s ch quoted s everal numbe rs that related solely to his damage calculations from 2013 to 2015.

Bank, N.A. , 560 F . App ’ x 233, 243 (5th Cir. 2014) (quo ting Sw. Livestock & Truck ing Co. v

. Dooley , 884 S.W.2d 805, 809 (Tex. App.

— San Anton io 1 994, writ denied) )

. An equitable accounting is proper when the facts an d accounts presen ted are so co mplex that adequate relief may not be obt ained at law. T.F.W. Mgmt., Inc. v. Westwood Shor es Prop. Ow ners Ass ’ n , 79 S.W.3d 71 2, 717 ( Tex. A p p.

— Housto n [ 1 4th D ist.] 2002, pet. denied) ; Hutchings v. Chevron U.S.A., Inc. , 862 S. W.2d 752, 762 (Te x. App.

— El Pa so 1993, writ denied)

. “ To be entitled to an accounting, a plaintiff usually must have a
c ontractua l or fiduciary relationshi p with the par t y from wh ich the p laintiff see ks t he accounting. ” T.F.W. , 79 S.W.3d at 717

. “ When a party can obtain adequate re li ef at law through the use of standard discovery procedures, such as requests for production and inte rr ogatories, a trial court does not err i n not ord eri n g an accounting. ” Id

. at 717

– 18

.9 In his declaration in this suit , Hein s ch states that he updated his calculations to account for the period at issue in this s uit, 2016 t o 201 9 , and he attache s exhibits
ref le cti ng the P roperty’ s “ balance sheet ” and its “financial damages

. ” However, there his explanation ends. Hein s ch never states how he updated the calculations, the significance of th e exhibits o r the nu mbers they contai n , how they relate to equi table

acco un ting , or, most importantly, the basis of his personal knowledge

. A declarant

must establish the basis for his personal knowledge. Kerlin v. Arias , 274 S.W.3d 666, 668 (Tex. 2008) (p er curiam) ; Ruff v . Ruff , No. 11

- 20

- 00122

- CV, 2021 WL 388707, at *10 (T ex . Ap p.

— Eastland Feb. 4, 2021, pet. filed) (mem. op.)

. T he numbers reflected in those exhibits differ materially from his calculations at the prior trial and from the
numb er s stated b y anothe r declarant, Mark Cooper, as the amount of damages that
LAK XN h as sustained in this suit

. Hein s ch offers no testimony to explain the se discrepanc ies

. He simply state s that he reviewed financial data and a rr ived at cer tain
conclusions

. “ A conclusory sta tement is one tha t does not provide the underlying facts to supp or t the conclusion.” Atmos Energy Corp. v. Paul , 598 S.W.3d 431, 467 (T ex. App.

— Fort Worth 2020, no pet.). Hein s ch’s declaratio n is concluso ry, and

“ [c] onclusory statements ar e not proper su mmary judgment pr oof.” Id. As for the
exhibits attached to Hei n s ch’s declaration , w hile the se financial documents might

mean somet hing to an accountant, their significance is wholly lost on t hi s court in the absence of any meaningful explan ation, either in the briefing o r the evidence.10 Thus, the sum total of what LAK XN has offered is: (1) by way of briefing, a
bare assertion that it s ev idence creates a fact issue, with no other argument and n o elucidation of what that evidence might be , and (2) by way of declaration, a

c onclusory statement that certain calculations h av e been updated, with no demonstration of personal knowledge and no exp lanation of the nature or significance of those calculati on s. We cann ot say that this is enough to adequately
brief the issue 4 or, even considering the merits, to create a fact issue on LAKXN’s
affirmative defense of setoff. See Stucki , 963 S.W.2d at 781

. Even setting aside the issues with LAKXN’s briefing and e vidence, i t should be remembered that this is an equitable su it for money had and received and for equitable accounting , and se toff itself has been described as an equitable doctrine

. See,
e.g . , C apital Concepts Props. 85

- 1 v. Mut. First, Inc. , 35 F.3d 17 0, 175 (5th Cir. 1994). Thus, equitable concerns take center stage, a nd one of those concerns must be the negative equitable d imension of Pillar’s assignment of its claim to LAKXN

. By partial ly a ssigning a claim to LAKXN in the exact amount o f the liab il ity asserte d by TLC, Pillar is attempting to manufacture a fa ct issue where none would otherwise exist. In doing so, Pillar is needlessly doubling the amount of litigation involved in
resolvin g it s claim.

4 “Brief conclusory statements unsuppor ted by argument o r citation to legal authorities present nothing for review.” In re C.R.A. , 453 S.W.3d 623, 633 (Tex. Ap p.

— Fort W or th 2014, no pet.).11 As a general rule, “causes of action are freely as signable in Texas.” Am. Homeowner Pres. Fund, LP v. Pirkle , 475 S.W .3d 507, 517 (Tex. App.

— Fort Worth 2015, pet. denied). “ Ho wever, exceptions have been carved out of this general rule, mos tly in situations when the particular assignment pr esents speci fi c dangers , such as jury confusion, the multiplication of di sputes, a nd potential prejudice to the parties.” Id. ( cleaned up )

. Thus, courts may employ equitable principles to bar certain types of assignment, id. at 518, where in a n assignment is use d as a “transparent device” to
“increase and disto rt litiga tion

. ” State Farm Fire & Cas. Co. v. Gandy , 925 S.W.2d 696,
708 , 711 (Te x. 1996)

. We do not go so far as to strip the assig nmen t of legal force

. Rather, we simply
note that eq uity traditionally ha s a n “aversion” to “the multiplying of contentions and
suit s” through manipulative assignments

. Id. at 706 (cleaned up)

. Pillar’s a ssignment to LAKXN is a transparent ploy that wou ld u nnecessarily multiply the contentions
and suits

. Thus, Pillar and LAK XN ’s attempt to distort the litigation does not sw ing
the b alance of equities in their favor , which is essential since t he merits o f this suit come down to the interplay of three equitable doc trines

. 5

5 Brie fly, LAKXN als o maintain s t h at th e affirmative de fense of express contract should bar TLC’s equitabl e suit for money had and rec ei ved. “[W]hen a valid agreement already addresses the matter, recovery unde r an equi ta ble theory is genera lly inconsistent w i th the ex pre s s agr eement.” Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Too ls, Inc. , 246 S.W .3d 42, 50 (T ex. 2008) (op. on reh ’ g). “It has long been the law

. . . that where a n adequate an d complete remedy at law i s provided, ou r cour ts, thoug h clothed with equit able jurisdiction, will not grant equitable relief.” GRCDallasHome s , 619 S.W.3d at 308 ( cleane d up ).12 W e therefore overrul e LAKXN’s fi rs t issue for reasons o f inadequate briefing, failure of summary judgment proof, a nd equity

. Most important are the deficien cies
in LAKXN’s summary judgm en t proof ; b ecause LAKXN failed to carry its responsive bur den to generate a fact issue on its affirma ti ve defense , TLC is en ti tled

t o summary judgment on its claim for money had and r eceived. This renders it unnecessary to consider LAKXN’s remaining argu me nts , which attack the alternative grounds on which summar y judg ment might also h ave be en upheld.
IV. C ONCLUSION We affirm t he trial court’s summary judgment in favor of TLC. /s/ Wade Birdwell
W ade Bir dwell Justice
Delivered: July 22, 2021

LAKXN has not identified what contract covers the su bj ect matter of TLC’s suit fo r money had and receiv e d, wh ich conce rns LAKXN’s wrongful withholding of a tax refund that was meant for TLC. The only contract that LAKXN included in its summary jud gm ent proof was the contract whereby TLC agreed to sell th e Pr operty to Pillar , but that contrac t says nothing o f a t ax r efund that would not be a ccrued until six years after the contract was finalized. We therefore do not see what contract
ove rlaps with th e subject matter of TLC’s claim for mo ne y had and received. LAKXN ha s faile d to create a f a ct is sue on th e affirmative defens e of express contract.