COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL NEVAREZ AND THE LAW 

OFFICES OF MICHAEL R. NEVAREZ,

A PROFESSIONAL CORPORATION, 

D/B/A NEVAREZ LAW FIRM, P.C.,

 Appellants,

v.

USAA FEDERAL SAVINGS BANK,

 Appellee.

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No. 08-19-00120-CV

Appeal from the

41st District Court 

of El Paso County, Texas 

(TC# 2018-DCV-1121) 

O P I N I O N

Appellants Michael Nevarez (“Nevarez”) and The Law Offices of Michael R. Nevarez, a 

Professional Corporation, d/b/a Nevarez Law Firm, P.C. (the “Firm”) (collectively, “Appellants”),

appeal the trial court’s summary judgment in favor of Appellee USAA Federal Savings Bank 

(“USAA FSB”). In five issues, Nevarez and the Firm argue that USAA FSB failed to conclusively 

establish as a matter of law it was entitled to summary judgment on its claims of money had and 

received. Finding no error, we affirm.

I. BACKGROUND

A. Factual Background

In May 2017, a USAA FSB loan originator and prospective home buyers, Ryan Dumire 
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and Cristal Rose, completed a universal residential loan application for the purchase of an El Paso 

home. On June 6, 2017, attorney Michael Nevarez sent a letter to USAA FSB describing that he 

had been retained to act as “Escrow Agent,” in connection with the closing of the purchase of 

14370 North Cave Drive, El Paso, Texas, by buyers Dumire and Rose from sellers James and 

Leigh Hoffman. The escrow agent designation more specifically described the agent as “Michael 

R. Nevarez, Esq., Attorney at Law, State of Texas Bar No. 14933400.” Paragraph two of the letter

further offered closing protection terms to USAA FSB, provided it timely fund the entire amount 

of the loan that had been applied for and approved for Buyer. The letter next clarifies that “[t]he 

term, ‘Escrow Agent,’ shall include the direct operations of the Firm.”

Nine numbered paragraphs follow in which the letter further describes the “protection with 

respect to the closing of your loan transaction . . . .” Paragraph one provides that “[t]he Firm” 

would disburse the funded loan amount in accordance with the closing statement and that 

disbursements would not deviate from that statement unless USAA FSB gave advance written 

approval. Paragraph two assures that the Firm will replace the settlement funds that are lost after 

receipt of such funds by such Escrow Agent as a direct, proximate result of the fraud or dishonesty 

of such Escrow Agent. In closing, the letter is signed by Nevarez as president of the Nevarez Law 

Firm, PC. The letter itself is written on letterhead of “The Nevarez Law Firm, PC.” Enclosed with 

the letter was a closing disclosure form identifying the settlement agent as Lone Star Title.

On June 28, 2017, USAA FSB emailed one of the home buyers stating that the title 

company had a variety of time slots available for the buyer’s closing. In response, the home buyer 

emailed back that he had scheduled to close with his lawyer, and the closing would take place at

his lawyer’s office. The following day, on June 29, 2017, USAA FSB wired the sum of 
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$174,281.80 to a JPMorgan Chase Bank account described as belonging to “Michael R. Nevarez 

Law [F]irm PC.” Despite such wire transfer, no closing took place on that day; instead, on June 

30, 2017, Nevarez sent an email to two persons at Lone Star Title and USAA FSB, respectively,

informing each that his unnamed client had specific objections to the proposed deed which was 

provided with the closing documents. The escrow officer at Lone Star Title quickly responded that 

no error was made regarding the type of deed and none of the documents would be revised. By 

that evening, USAA FSB emailed Nevarez at 5:05 p.m. to notify him that the sum of $174,281.80 

had been erroneously wired to him and requested that he respond as soon as possible for return 

wire instructions. The title company also informed both USAA FSB’s contractor and Nevarez that 

its underwriter had issues with the closing documents and there would need to be a “redo” of both 

the buyers’ and the sellers’ closings.

Email correspondence indicatesthat USAA FSB remained in communication with the Firm

during the following week. Being informed that Nevarez was out of his office, USAA FSB had 

been unable to yet retrieve its money. On July 7, 2017, USAA FSB processed another wire of the 

loan proceeds to Lone Star Title so that the buyers could close on their home purchase. Thereafter, 

no party requested the assistance of either Nevarez or the Firm in connection with the transaction.

1

On July 21, 2017, USAA FSB sent a follow-up email to Nevarez in which it again requested

return of the erroneously sent wire. On August 2, Nevarez emailed back a one line response stating, 

“Sorry, I had to go out of town again. Where would you like me to mail the check to?” Despite 

this response, the next series of correspondence, which begins on October 31, shows that USAA 

1 At one point, Nevarez sent an email informing representatives of the title company and USAA FSB that his client

(the Sellers) objected to the Warranty Deed with Vendor’s Lien which had been included in the closing package. The 

title company responded that it would only accept a signed Warranty Deed with Vendor’s Lien.
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FSB still had not received its money back, and on that day, it sent the following email to Nevarez:

Per our phone conversation we will expect the returned wire to be in the amount of 

174206.80 ([ ]original wire was 174,281.80 and we are agreeing to the 75.00 fees 

being withheld). I have attached our return wiring instructions. Please respond once 

you have sent the wire with the Federal reference number.

And on November 2, USAA FSB sent yet another email to request the return of its money:

Per our phone conversation on October 31 you advise that you would be returning 

the wire to USAA on the above referenced file. It is now 3 days later and we have 

still not received the wire. You have held our funds 174,281.80 now for 90 days. 

Please advise when the wire will be returned.

Nevarez responded to the November 2 email that same day with the following email: “3 

days later? We just spoke 2 days ago. My bookkeeper has been out all week. We’ll send you the 

check when she comes back next week.” Despite this assurance, several more weeks passed in 

mid-November during which USAA FSB sent two more follow-up emails requesting return of its

money. And, in December, it sent a demand letter from its legal counsel formally requesting a wire 

payment of $174,206.80. On March 27, 2018, USAA FSB filed suit against Nevarez and the Firm

seeking to recover the wired funds.

B. Procedural Background

In its original petition, USAA FSB alleged a claim for money had and received against 

both the Firm and Nevarez with a request that both named parties be held jointly and severally 

liable for holding money that belongs to USAA FSB in equity and good conscience. Appellants

jointly filed an answer generally denying the allegations and asserting various affirmative 

defenses, which are not at issue here. Thereafter, USAA FSB filed a motion for summary judgment 

against both Appellants on its claims of money had and received. Although Appellants responded

with their contentions that USAA FSB had failed to prove its claim against either party, neither 
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Nevarez nor the Firm filed a motion for summary judgment of its own. Nevarez attested by 

affidavit that he acted only as an “agent, representative and as Counsel” for the Firm in his dealings 

with USAA FSB. He further attested that neither he nor the Firm promised to return the money to 

USAA FSB but instead had “promised to look into the matter further[] and return the funds if 

appropriate.” He further avers there was no contract with either USAA FSB or Lone Star; thus, he

“concluded that the wire transaction was tantamount to a gift, erroneous or otherwise, and that 

USAA’s remedies lie solely against LONE STAR.” In its reply, USAA FSB contended that 

Nevarez should be held individually liable on the claim for money had and received because “his 

actual status is one of joint tortfeasor -- he was the person who was supposed to act as Escrow 

Agent, not just his firm.”

After USAA FSB filed its reply, Appellants filed a motion to dismiss under Texas Rule of 

Civil Procedure 91a. See TEX. R. CIV. P. 91a (“Dismissal of Baseless Causes of Action”). In this 

motion, Appellants argued that Nevarez was shielded from personal liability under the affirmative 

defense in Texas Business Organizations Code section 21.223. See TEX. BUS. ORGS. CODE ANN. §

21.223 (“Limitation of Liability for Obligations”).

By written order, the trial court granted USAA FSB’s motion for summary judgment

holding the Firm and Nevarez jointly liable for restitution in the amount of $174,206.80, along 

with pre- and post-judgment interest, attorney’s fees, and court costs. The trial court also denied 

Nevarez’s motion to dismiss based on Nevarez having used the corporation as an “alter-ego” for 

his own personal use when claiming that the money delivered to and received by both he and the 

corporate entity was “tantamount to a gift.” On March 25, 2019, the trial court entered a final 

judgment in favor of USAA FSB and against Michael Nevarez and the Law Offices of Michael 
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R. Nevarez, P.C., d/b/a Nevarez Law Firm. Although the judgment recited the trial court’s grant 

of summary judgment, it did not recite the court’s denial of Appellants’ motion to dismiss nor did 

it award any attorney’s fees. The final judgment expressly stated that all relief not stated therein 

was denied. From this final judgment, Appellants filed their notice of appeal.

II. ISSUES ON APPEAL

In five issues on appeal, Appellants argue that the trial court erred in granting summary 

judgment. Although not entirely congruent with their pleadings in the trial court, Appellants argue

that the trial court erred for the following reasons: (1) USAA FSB failed to prove that Nevarez 

personally had or received the money at issue; (2) USAA FSB failed to prove that Nevarez was 

liable under a theory that he used the Firm as an alter-ego for his personal benefit; (3) USAA FSB

failed to prove that Nevarez was liable under a theory that he perpetrated actual fraud for his 

personal benefit; (4) Nevarez conclusively proved the affirmative defense to individual liability 

under section 21.223 of the Texas Business Organizations Code; and (5) USAA FSB failed to 

prove that it was entitled to equitable relief against either Nevarez or the Firm on its claim for 

money had and received where USAA FSB’s inadvertent wire of funds to an incorrect party was 

based on USAA FSB’s own negligent unilateral mistake.

In response, and likewise not entirely congruent with its pleadings, USAA FSB argues that 

the trial court’s grant of summary judgment on its claim for money had and received was proper 

because: (1) the Firm was liable where it refused to return money that in equity and good 

conscience belonged to USAA FSB; and (2) Nevarez was liable where he breached fiduciary duties 

owed to USAA FSB as an escrow agent, where he directed tortious actions of the Firm in refusing 

to return USAA FSB’s money, and where he failed to conclusively establish his affirmative 
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defense under Texas Business Organizations Code section 21.223.

Importantly, Appellants do not dispute in their briefing to this Court that the Firm received 

the money wired by USAA FSB. Instead, their primary factual contention is that USAA FSB failed 

to prove that Nevarez ever had or received those funds. With this underlying premise, we address 

Appellants’ issues out of turn by resolving Appellants’ fifth issue contesting the Firm’s liability 

before turning to Appellants’ first through fourth issues contesting Nevarez’s individual liability.

III. DISCUSSION

A. Standard of Review

A trial court’s granting of summary judgment is reviewed de novo. Tarr v. Timberwood 

Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary 

judgment has the burden to prove that no genuine issue of material fact exists, and the movant is 

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see also ConocoPhillips Co. v. 

Koopmann, 547 S.W.3d 858, 865 (Tex. 2018). The movant must establish its right to summary 

judgment on the grounds expressly presented to the trial court by conclusively proving all elements 

of the movant’s cause of action or defense as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 

S.W.2d 217, 223 (Tex. 1999). A matter is conclusively established if reasonable people could not 

differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 

802, 815 (Tex. 2005).

If the movant establishes its right to judgment as a matter of law, the burden shifts to the 

nonmovant to present evidence raising a genuine issue of material fact precluding summary 

judgment. Ballard v. Arch Ins. Co., 478 S.W.3d 950, 953 (Tex. App.—Houston [14th Dist.] 2015, 

no pet.); Hovorka v. Cmty. Health Sys., Inc., 262 S.W.3d 503, 508 (Tex. App.—El Paso 2008, no 
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pet.). To determine if a fact issue exists, we must consider whether reasonable and fair-minded 

jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & 

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We review summary judgment evidence 

in the light most favorable to the party against whom the summary judgment was rendered, 

crediting evidence favorable to that party if reasonable jurors could and disregarding contrary 

evidence unless reasonable jurors could not. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 

(Tex. 2015).

When the order granting summary judgment does not specify the grounds relied on for the 

ruling, we affirm the summary judgment if any of the theories advanced are meritorious. Thrower 

v. State, No. 03-18-00800-CV, 2019 WL 7342248, at *1 (Tex. App.—Austin Dec. 31, 2019, no 

pet.) (mem. op.). However, we cannot “‘read between the lines’ or infer from the pleadings any 

grounds for granting the summary judgment other than those grounds expressly set forth before 

the trial court.” Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). New grounds asserted in a 

movant’s summary judgment reply will not be considered on appeal. Atmos Energy Corp. v. Paul, 

598 S.W.3d 431, 467 (Tex. App.—Fort Worth 2020, no pet.).

B. “Money Had and Received”

A claim for “money had and received” is equitable in nature. Plains Expl. & Prod. Co. v. 

Torch Energy Advisors Inc., 473 S.W.3d 296, 302 n.4 (Tex. 2015). “Money had and received is a 

category of general assumpsit to restore money where equity and good conscience require refund.”

Id. (quoting MGA Ins. Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 813 (Tex. App.—Dallas 

2012, no pet.)). This cause of action is not based on any misconduct but instead looks only to 

whether one received money that rightfully belonged to another. Id. The cause of action for money 
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had and received is applied to keep the defendant from being unjustly enriched. Id. In order to 

prove a claim under this cause of action, plaintiff must prove defendant holds money that in good 

conscience and equity belongs to plaintiff. Id.; Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 

(Tex. App.—El Paso 1997, no writ); see also Burrus v. Reyes, 516 S.W.3d 170, 197 (Tex. App.

—El Paso 2017, pet. denied) (stating the money had and received cause of action is aimed at 

abstract justice rather than restricted by technical rules and formalities). A “defendant may present 

any facts and raise any defenses that would deny the claimant’s right or show that in equity and 

good conscience the claimant should not recover.” Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 

201, 205 (Tex. 2007). 

C. Analysis

1. Summary Judgment Holding Nevarez and the Firm Liable was not Error

As previously noted, there is no factual dispute that the Firm held USAA FSB’s mistakenly 

wired funds of $174,281.80, which were intended as loan proceeds to fund a home purchase in El 

Paso. As summary judgment evidence, USAA FSB provided the closing protection letter and 

closing statement which evidenced the intention of Nevarez and his Firm to hold the money as an 

escrow agent and to disburse payments only to Lone Star Title or the home sellers unless USAA 

FSB gave advance written approval to do otherwise. The Firm had no authority to hold onto USAA 

FSB’s money, especially once the sale of the home was postponed and Appellants’ assistance in 

closing the transaction was no longer requested.

USAA FSB also presented evidence that the Firm never returned USAA FSB’s money 

even after Nevarez represented to USAA FSB that Appellants would do so. Within one day of the 

erroneous wire, USAA FSB discovered its mistake, and on June 30, 2017, USAA FSB began 
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making numerous, unfruitful requests to Nevarez to return the money. USAA FSB’s requests were 

made over the course of several months during which Appellants offered no explanation for failing 

to return the money. Appellants’ failure was made even more striking after Nevarez twice emailed 

USAA FSB with unequivocal declarations that he would return the money. In August 2017, 

Nevarez wrote by email, “Sorry, I had to go out of town again. Where would you like me to mail 

the check to?” Three months later in November, Nevarez wrote by email, “We just spoke 2 days 

ago. My bookkeeper has been out all week. We’ll send you the check when she comes back next 

week.” In addition, an October email from USAA FSB reflected that Nevarez represented during 

a phone conversation that he would ensure the return of USAA FSB’s money. Nevarez attested by 

affidavit in his response to USAA FSB’s summary judgment filings that Appellants never 

promised to return the money. However, this attestation is clearly shown to be false by his own 

words in emails to USAA FSB. Nevarez does not contest the contents of the emails and therefore, 

his attestation is not entitled to any probative value, even under a summary judgment standard of 

review. See Goodyear Tire, 236 S.W.3d at 755 (instructing that we “must consider whether 

reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence 

presented” when determining whether a fact issue exists). But more relevant to the money had and 

received cause of action, Nevarez admitted in briefing that the record proved the payment of money 

in question was erroneous, not based on any obligation. Finally, neither Nevarez nor anyone from 

the Firm returned the money or offered any lawful basis for not doing so prior to USAA FSB filing 

its lawsuit. Nevarez simply asserted without proof that USAA FSB had intended to make a gift.

Based on these circumstances, we hold that USAA FSB proved there was no genuine issue 

of material fact that the Firm held money which in equity and good conscience belonged to USAA 
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FSB and thereby proved its claim for money had and received where: (1) the Firm does not dispute 

it held the money; (2) USAA FSB conclusively proved its wire of the money to the Firm was 

mistakenly done; and (3) USAA FSB conclusively proved the Firm had completed no service or 

act, nor had any alternative legal basis, on which it could assert some equitable claim to USAA 

FSB’s money. See Plains Expl. & Prod., 473 S.W.3d at 302 n.4; Burrus, 516 S.W.3d at 197; see 

also Doss v. Homecoming Financial Network, Inc., 210 S.W.3d 706, 711 (Tex. App.—Corpus 

Christi 2006, pet. denied) (holding that the record established Appellees’ right to summary 

judgment on their claim for money had and received against Appellant where: (1) Appellees 

received funds intended to pay a loan note for the home of Appellant’s ex-wife; (2) Appellees 

instead mistakenly applied the funds to Appellant’s separate loan note for his own property, even 

though a recorded deed in the public records should have alerted Appellees to their mistake; and 

(3) the funds in equity and good conscience belonged to Appellees so that the funds could be 

properly applied to the ex-wife’s note); Progressive Transp., LLC v. Republic Nat’l Indus. Of Tex., 

LP, No. 06-14-00030-CV, 2015 WL 500514, at *10-11 (Tex. App.—Texarkana Feb. 5, 2015, no 

pet.) (mem. op.) (holding that the trial court’s grant of summary judgment in favor of Appellee on 

its claim for money had and received against Appellant was proper where: (1) Appellant admitted 

that it had received payment for the invoices at issue and that it had no assignment from anyone to 

collect on the invoices; (2) Appellee conclusively established that no work was done to earn 

payment on the invoices; and (3) consequently, payment on the invoices “did not belong to” 

Appellant). Our holding is in accord with the general rule that a party who pays under a mistake 

of fact may recover restitution of those funds on a claim for money had and received, and 

Appellants have not pleaded or proved the material-change-or-reliance exception to this rule. See
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Doss, 210 S.W.3d at 711 (citing Bryan v. Citizens Nat’l Bank, 628 S.W.2d 761, 763 (Tex. 1982)); 

see also Lyman D. Robinson Family Ltd. P’ship v. McWilliams & Thompson, PLLC, 143 S.W.3d 

518, 520 (Tex. App.—Dallas 2004, pet. denied).

We reject Appellants’ two defensive theories presented under a money had and received 

claim. First, Appellants contend that “payment by unilateral mistake bars a claim for money had 

and received” and cite a line of cases that, at first glance, appear to support their proposition. 

However, as pointed out by USAA FSB, there is an essential, distinguishing feature of Appellants’ 

cited cases to the issue at hand. Appellants’ cited cases all involve parties seeking equitable relief 

where they paid money with full knowledge of the facts surrounding the transaction but later 

discovered their payments were for legally invalid claims. See Pac. Molasses Co. v. Graves, 451 

S.W.2d 294, 297 (Tex. App.—San Antonio 1970, writ ref’d n.r.e.) (addressing a situation where a 

purchaser of molasses that had expressly authorized its bookkeeper to pay for molasses shipments 

sought return of money paid out to the seller on the basis that the payments should have been made 

by third parties); Emp’r Cas. Co. v. Universal Underwriters Ins. Co., 404 S.W.2d 954, 955 (Tex. 

App.—Amarillo 1966, no writ) (addressing a situation where an excess insurance carrier sought 

reimbursement from the primary carrier for funds paid to a third party who was injured by insured 

and was entitled to be paid damages); Sellman v. Am. Nat’l Ins. Co., 281 S.W.2d 150, 154 (Tex. 

App.—Texarkana 1955, writ dism’d) (addressing a situation where a life insurance company 

sought repayment of funds paid on a policy to a spouse of the insured who the company mistakenly 

believed was dead); see also R.G. McClung Cotton Co. v. Cotton Concentration Co., 479 S.W.2d 

733, 743 (Tex. App.—Dallas 1972, writ ref’d n.r.e.) (addressing an inapposite situation where the 

plaintiff did not claim the payments at issue were made under mistake of fact and additionally 
13

observing that the rule against recovery of voluntary payments is based on the rationale that “a 

party who pays a claim is deemed to have made his own decision that it is justly due. If he thinks 

otherwise, he should resist.”) (Emphasis added.) Using the same reasoning we have employed to 

distinguish these cases, our sister court in Lyman addressed and rejected an identical argument 

based on nearly the same line of cases cited by Appellants here. See Lyman D. Robinson Family 

Ltd. P’ship, 143 S.W.3d at 521 (rejecting Appellants’ unilateral-mistake defense premised on the 

rationale of R.G. McClung Cotton Co., Employers Casualty Co., and Sellman because “the 

authorities cited by appellants involved money paid voluntarily with full knowledge of all facts, 

not money paid by mistake as in the case before us”). Appellants have no analogous claim upon 

which they could assert their right to USAA FSB’s mistaken payment. Thus, we reject Appellants’ 

unilateral-mistake defense as inapplicable to this case.

Second, Appellants contend that “as between two innocent parties, the party that must 

suffer the loss is the one that mistakenly created the situation and was in the best position to have 

avoided it.” Appellants’ cited cases are united by another distinguishing feature in that the party 

against whom restitution is sought either provided services for which payment was earned and 

therefore, cannot be unjustly enriched. See Holden Bus. Forms Co. v. Columbia Med. Ctr. Of 

Arlington Subsidiary, L.P., 83 S.W.3d 274, 278 (Tex. App.—Fort Worth 2002, no pet.) (holding 

that a company offering medical insurance to its employees was not entitled to reimbursement 

from a hospital for medical payments arising from an employee’s injuries sustained in a collision

for which insurance coverage should not have applied due to the employee’s intoxication where: 

(1) the hospital treated the employees’ injuries and thereafter submitted bills to the company 

pursuant to the employee’s medical insurance; (2) the company was in a better position than the 
14

hospital to know of the exclusions in its own policy; and (3) the hospital made no 

misrepresentations to the company to induce the payments and had no knowledge of the 

exclusion); Lincoln Nat’l Life Ins. Co. v. Brown Sch., Inc., 757 S.W.2d 411, 415 (Tex. App.—

Houston [14th Dist.] 1988, no writ) (holding that an insurance company was not entitled to 

restitution for overpayments made to a hospital for medical treatment tendered to the company’s 

insured when there was no unjust enrichment); see also Lincoln Nat’l Life Ins. Co. v. Rittman, 790 

S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.] 1990, no writ) (holding that it was not 

“equitable under the circumstances” for an insurance company to recover restitution from its 

insured for overpayments made to a hospital that tendered medical treatment to the insured where

overpayment was insurance company’s own error and insured accepted as a benefit of 

employment). Here, Appellants are not similarly innocent parties because they will, in fact, be 

unjustly enriched if allowed to keep the money that in good conscience belongs to USAA FSB.

Thus, we reject Appellants’ innocent-parties defense as inapplicable to our case as well.

Having found that USAA FSB proved there was no genuine issue of material fact on its 

claim for money had and received against the Firm and that Appellants’ asserted defenses do not 

apply here, we hold the trial court did not err in granting summary judgment against the Firm on 

USAA FSB’s claim for money had and received. See TEX. R. CIV. P. 166a(c); Lightning Oil, 520 

S.W.3d at 45. We therefore overrule Appellants’ fifth issue presented for review.

2. Summary Judgment Holding Nevarez Individually Liable was not Error

As an individual, Nevarez presents several alternative arguments purporting to distinguish 

his conduct from that of the Nevarez Law Firm. Principally he contends there was no evidentiary 

proof that he “‘had’ in fact ‘received’ the money at issue.” Alternatively, he contends there was no 
15

proof that the Nevarez Law Firm was his “alter-ego,” that he used the Firm for his personal benefit, 

or that he committed actual or constructive fraud. Because Nevarez individually acted as an escrow 

agent when he initially sent his letter of representation and later directed the conduct of the Firm 

regarding its receipt of the funds, we hold that the evidence conclusively established Nevarez’s 

joint and several liability for the equitable claim of money had and received.

It is undisputed that Nevarez is the president of the Nevarez Law Firm, which is a 

professional corporation formed in his name. As president, he directs the Law Firm’s conduct 

throughout all times relevant to this dispute and his conduct is deemed to be the conduct of the 

Law Firm itself. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999) (“When 

actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of 

the corporation itself.”); see also Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 901 

(Tex. 2005) (“While a professional association with a single principal can act only through that 

person, the person can act outside the scope of his employment as principal of the association.”); 

see also TEX. BUS. ORGS. CODE ANN. § 301.010(a)(1) and (2) (providing that a professional entity 

is jointly and severally liable for an error, omission, negligent or incompetent act, or malfeasance 

committed by a person who is an owner, managerial official, employee, or agent of the entity; and 

while providing a professional service for the entity during the course of the person’s employment, 

commits the error, omission, negligent or incompetent act, or malfeasance).

In corresponding with USAA FSB, Nevarez identified himself as the president of the Law 

Firm. Specifically, he used the Law Firm letterhead to inform USAA FSB that he personally would 

serve as the escrow agent of the proposed transaction, and in doing so he provided his State Bar 

license number issued to him personally. This letter also stated that the term, “‘Escrow Agent’[] 
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shall include the direct operations of the Firm.” Accordingly, Nevarez did not act outside his 

professional employment with the Firm.

It is undisputed that, on June 6, 2017, Nevarez informed USAA FSB that the escrow agent 

would only disburse the funded loan amount in accordance with the closing statement attached 

with his letter, and he further stated that the disbursements made by the Firm would not deviate 

from that statement. After an exchange of emails, the home purchase closing was scheduled to 

take place on June 29, 2017, at noon, at the Nevarez Law Firm. At 8:43 a.m. on that date, USAA 

FSB wire transferred funds in the amount of $174,281.80, directly to the bank account of the Firm. 

From Nevarez’s position as principal owner of the Law Firm, it necessarily follows that the bank 

account is principally controlled by him. Indeed, on behalf of the Firm, Nevarez does not dispute 

the receipt of the funds. As noted above, Nevarez even admitted he had promised to return the 

monies that he deemed “appropriate,” but ultimately, despite having received several requests for 

return of the funds, Nevarez concluded his firm’s receipt of such funds was “tantamount to a gift.” 

Throughout the relevant period, the evidence conclusively established that Nevarez acted in the 

course and scope of his duties as a principal officer of the Law Firm.

Because the trial court’s judgment may be upheld on Nevarez’s joint liability with the Firm, 

we need not consider his alternative argument in Issue Two regarding an alter-ego theory or a 

piercing of the corporate veil. We overrule Nevarez’s first, third and fourth issues to the extent 

they address Nevarez individually.

We affirm the trial court’s judgment.

IV. CONCLUSION

Having overruled all five issues, we affirm the trial court’s summary judgment granting 
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USAA FSB’s claim for money had and received against Michael Nevarez, individually, and 

against The Law Offices of Michael R. Nevarez, a Professional Corporation d/b/a Nevarez Law

Firm, P.C.

GINA M. PALAFOX, Justice

March 5, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.