Affirmed in Part, Reversed in Part, and Remanded, and Majority and 

Concurring and Dissenting Opinions filed May 4, 2021.

In the

Fourteenth Court of Appeals

NO. 14-19-00145-CV

REGIONAL SPECIALTY CLINIC, P.A., Appellant

v.

S.A. RANDLE & ASSOCIATES, P.C. AND 

SARNIE A. RANDLE, JR., Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2017-81941

M A J O R I T Y O P I N I O N

This appeal arises out of a dispute between a personal-injury lawyer and a 

medical provider for payment for services provided to the lawyer’s client. Appellant 

Regional Specialty Clinic, P.A. (“clinic”) appeals from a final summary judgment 

that it take nothing from appellees S.A. Randle & Associates, P.C. and Sarnie A. 

Randle, Jr. (collectively Randle or “lawyer”). Asserting multiple theories of 
2

recovery against the lawyer, the clinic alleged that the lawyer wrongfully failed to 

pay for medical services and treatment provided to the lawyer’s client, Patrick Cuba 

(Cuba or “client”), out of the proceeds of the client’s personal-injury settlement. 

The lawyer moved for traditional and no-evidence summary judgment on all 

of the clinic’s claims, arguing he had no knowledge of the assignment of benefits 

signed by his client and that he owed no duty to remit any of the settlement proceeds 

to the clinic. The trial court granted the motion for summary judgment, which the 

clinic challenges in two issues. We affirm in part, reverse in part as to one claim 

only, and remand the case for further proceedings.

Background

The clinic treated Cuba following an April 2012 car accident. The clinic

alleges that at the time it provided treatment, Cuba signed a document assigning to 

the clinic a portion of any personal-injury recovery received. When the treatment 

occurred, Cuba was represented by an attorney who is not involved in this suit. Cuba 

later changed attorneys and hired Randle to represent him. Randle did not have a 

contract or any type of financial arrangement with the clinic for Cuba’s medical 

treatment.

In July 2014, Randle settled the client’s lawsuit for $60,000, comprised of 

$30,000 payments by or on behalf of two insurers. From the settlement proceeds, 

Randle paid legal expenses, one of the client’s various medical providers, and the 

lawyer’s attorney’s fees. Randle then remitted the balance to Cuba. It is undisputed 

that Randle’s settlement demands did not reflect costs for Cuba’s treatment at the 

clinic. Randle mistakenly believed at the time that Dr. Bobby Pervez, the physician 

who treated Cuba at the clinic, was affiliated with another provider. Though Randle

learned during the personal-injury lawsuit that the clinic provided medical treatment 

to Cuba, he maintains he was unaware of any financial arrangement between the 
3

clinic and Cuba, or any financial interest on the part of the clinic in the outcome of 

the personal-injury lawsuit.

More than three years later, the clinic sued Randle to recover the costs of the 

client’s medical treatment. The clinic’s live pleading asserted claims for tortious 

interference with an existing contract, money had and received, unjust enrichment,

and breach of a third-party beneficiary contract. In his live answer, Randle pleaded 

a general denial along with several affirmative defenses, including privilege and

justification, lack of knowledge of any assignment, and statute of limitations. 

Randle filed an amended hybrid motion for traditional and no-evidence

summary judgment. The clinic responded to the hybrid motion, asserted special 

exceptions, and objected to some of the lawyer’s summary-judgment evidence.

The trial court rendered a final summary judgment in Randle’s favor,

1

and the 

clinic appealed.2

Analysis

The clinic presents two issues for our review. In its first issue, the clinic asks 

this court to review the trial court’s rulings on its objections and special exceptions 

1 The final judgment states that it grants the lawyer’s “Motion for Summary Judgment.” 

The order also states that the court heard and considered the lawyer’s “Motion for Traditional 

Summary Judgment,” which was superseded by his filing of the amended hybrid motion and could 

no longer be considered. Tex. R. Civ. P. 65; Retzlaff v. Tex. Dep’t of Criminal Justice, 135 S.W.3d 

731, 737-38 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Regardless of the pleading referred 

to by the trial court in the judgment, the amended hybrid motion was the live motion before the 

court. Retzlaff, 135 S.W.3d 738. Therefore, we conclude that the “Motion for Summary 

Judgment” granted by the trial court was the lawyer’s amended hybrid motion.

2 Though the final judgment is entitled “Order Granting Partial Summary Judgment,” the 

language in the order reflects the intent of the trial court with “unmistakable clarity” to dispose of 

all parties and all claims: “[T]he Court GRANTS Defendants’ Motion for Summary Judgment 

and hereby dismisses all claims brought in this case against Sarnie Randle, Jr. and S. A. Randle & 

Associates, P.C.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001).
4

to the lawyer’s hybrid motion. In its second issue, the clinic argues that the trial 

court erred in rendering summary judgment in Randle’s favor.

A. Standard of review

Our review of a summary judgment is de novo. Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because the trial court’s summary

judgment does not specify the ground or grounds on which it was granted, we uphold 

the court’s judgment if properly supported by any ground asserted in the motion.

See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When reviewing a summary 

judgment, we take as true all evidence favorable to the nonmovant, and we indulge 

every reasonable inference and resolve any doubts in the nonmovant’s favor. 

Dorsett, 164 S.W.3d at 661. Further, when the motion asserts both no-evidence and 

traditional grounds, we review the no-evidence grounds first. Ford Motor Co. v. 

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). In a no-evidence motion for summary 

judgment, the movant represents there is no evidence of one or more essential 

elements of the claims for which the nonmovant bears the burden of proof at trial. 

Tex. R. Civ. P. 166a(i). The nonmovant bears the burden to present more than a 

scintilla of probative evidence raising a genuine issue of material fact as to each 

element challenged in the motion. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 

582 (Tex. 2006); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 

(Tex. 2003).

To be entitled to traditional summary judgment, a movant must establish there 

is no genuine issue of material fact so that the movant is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. 

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant who conclusively 

negates a single essential element of a cause of action or conclusively establishes an 

affirmative defense is entitled to summary judgment on that claim. Frost Nat’l Bank 
5

v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010). Once the movant produces 

evidence entitling it to summary judgment, the burden shifts to the nonmovant to 

present evidence raising a genuine issue of material fact. Walker v. Harris, 924 

S.W.2d 375, 377 (Tex. 1996). Evidence is conclusive only if reasonable people 

could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 

(Tex. 2005).

We start with the clinic’s first issue to determine the summary-judgment 

grounds properly before the trial court.

B. The clinic’s objections to the lawyer’s affirmative defenses raised after 

the pleading deadline

The clinic objected that the lawyer’s affirmative defenses of (1) lack of 

knowledge and (2) privilege and justification were not raised until after the docketcontrol order pleading deadline. See Tex. R. Civ. P. 166. Rule 63 provides that 

parties may amend their pleadings or respond to pleadings on file of other parties at 

such time as not to operate as a surprise to the opposite party; provided that any 

pleadings or responses offered within seven days of trial or after such time as may 

be ordered by the judge under Rule 166 shall be filed only after leave is obtained, 

which leave shall be granted unless there is a showing that such filing will operate 

as a surprise to the opposing party. Tex. R. Civ. P. 63. Randle filed his first amended 

answer several days after the pleading deadline contained in the docket-control 

order, but more than one month before the summary-judgment hearing. Texas courts 

have held that in the absence of a sufficient showing of surprise by the opposing 

party, the failure to obtain leave of court when filing a late pleading may be cured 

by the trial court’s action in considering the amended pleading. Goswami v. Metro. 

Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988). In its objection to the lawyer’s 

summary-judgment motion, the clinic did not argue or demonstrate surprise. 
6

Therefore, the trial court’s overruling of the clinic’s objection established leave of 

court for the amended pleading and did not constitute error. Id.

C. The clinic’s special exceptions to the lawyer’s traditional summaryjudgment motion

The clinic specially excepted to Randle’s hybrid motion because Randle failed 

to include specific citations to summary-judgment evidence supporting his

traditional summary-judgment motion on the clinic’s claims of tortious interference 

and money had and received, as well as the lawyer’s affirmative defense of privilege 

and justification.3 The trial court overruled these special exceptions.

When a nonmovant believes a motion for summary judgment is unclear, 

ambiguous, or lacks specificity, it must file special exceptions. Brocail v. Detroit 

Tigers, Inc., 268 S.W.3d 90, 100 (Tex. App.—Houston [14th Dist.] 2008, pet. 

denied). That party must then obtain a ruling on the special exceptions to preserve 

the issue for appellate review. Tex. R. App. P. 33.1(a)(1); see McConnell v. 

Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (plurality op.) (“The 

practical effect of failure to except is that the non-movant loses his right to have the 

grounds for summary judgment narrowly focused, thereby running the risk of having 

an appellate court determine the grounds it believes were expressly presented in the 

summary judgment.”).

The clinic’s special exceptions sought to require the lawyer “to include 

specific cites to the summary[-]judgment evidence they rely on, if any.” The clinic

cites no rule or case law requiring the lawyer to specifically cite to summary3 The clinic argues on appeal that it raised a “special exception to [the lawyer’s] confusing 

motion for summary judgment.” While the clinic did state in arguing its special exceptions that 

the lawyer did not specify whether he was moving on traditional or no-evidence grounds, the relief

the clinic sought from the trial court was to require the lawyer to amend and include specific cites 

to the summary-judgment evidence. Therefore, we evaluate only those special exceptions raised 

in the trial court.
7

judgment evidence, and we are aware of none. While it is a better practice to 

specifically cite to the summary-judgment evidence in the motion itself, Rule 

166a(c) does not require it. Tex. R. Civ. P. 166a(c); Wilson v. Burford, 904 S.W.2d 

628, 629 (Tex. 1995) (per curiam) (grounds for summary judgment must be set out 

in the motion though summary-judgment evidence need not be).4 Therefore, we 

conclude that the trial court did not err in overruling the clinic’s special exceptions.

We overrule the clinic’s first issue.

D. The lawyer’s hybrid motion

1. Tortious interference

We first examine the propriety of the trial court’s summary judgment in 

Randle’s favor on the clinic’s tortious-interference claim, beginning with the 

lawyer’s no-evidence grounds.

Randle’s hybrid motion identifies the elements of this claim, and specifically 

argues that the clinic has no evidence that Randle knew of the alleged assignment or 

any evidence that he intended to interfere with the assignment of benefits between 

Cuba and the clinic. To recover on a claim for tortious interference with a contract, 

a plaintiff must establish: (1) the existence of a valid contract subject to interference; 

(2) that the defendant willfully and intentionally interfered with the contract; (3) that 

the interference proximately caused the plaintiff’s injury; and (4) that the plaintiff 

incurred actual damage or loss. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 

(Tex. 2002). To establish the element of a willful and intentional act of interference, 

4 On appeal, the clinic argues that the lawyer failed to address its arguments regarding the 

trial court’s rulings on its special exceptions and objections to the lawyer’s hybrid notion. The 

lawyer does, without any discussion, assert that the trial court did not commit any error, but if it 

did, that error was harmless. To the extent the clinic attempts to argue briefing waiver, we 

conclude there is no such waiver and determine the clinic’s appellate issues on the merits. See

Tex. R. App. P. 38.1(i), 38.2(a)(2), 38.9.
8

a plaintiff must produce some evidence that the defendant was more than a willing 

participant and knowingly induced one of the contracting parties to breach its 

obligations under a contract. Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied).

In support of its claim, the clinic cited to Randle’s designation of expert 

witnesses filed in the client’s personal-injury case, which reflected that before

settlement, Randle designated Dr. Bobby Pervez—principal of the clinic—and 

correctly identified his practice. The clinic contends the expert-witness designation, 

as well as treatment records contained within Randle’s litigation file, establish the 

lawyer’s knowledge that Cuba received medical treatment at the clinic. Further, the 

clinic cites to a statement in Randle’s affidavit that he would have requested records 

from the clinic had the case not settled so quickly. The clinic’s summary-judgment 

evidence fails to demonstrate that Randle knew that a contract existed between Cuba

and the clinic, and demonstrates only that Randle knew that Cuba received treatment 

at the clinic.

Relying on Exxon Corp. v. Allsup,

5

the clinic further argues that the facts and 

circumstances of which Randle knew would have led a “reasonable personal[-] 

injury lawyer to believe there was a contract in which [the clinic] had an interest.”

6

5

808 S.W.2d 648, 656 (Tex. App.—Corpus Christi 1991, writ denied).

6 The clinic incorrectly states that “a plaintiff can prove tortious interference by proving 

the defendant had knowledge of facts and circumstances that would lead a reasonable person to 

believe there was a contract in which the plaintiff had an interest” and incorrectly relies on John 

Paul Mitchell System v. Randall’s Food Markets, Inc., 17 S.W.3d 721, 730-31 (Tex. App.—Austin 

2000, pet denied), for that proposition. Only the element of intent is established by showing either

(1) that the interfering party had actual knowledge of the existence of the contract and of the 

plaintiff’s interest in it, or (2) that the interfering party had knowledge of such facts and 

circumstances that would lead a reasonable person to believe in the existence of the contract and 

the plaintiff’s interest in it. Allsup, 808 S.W.2d at 656. Accordingly, we read the clinic’s argument 

as addressing only the intent element—the element of the claim challenged by the lawyer on noevidence grounds.
9

Although the facts outlined by the clinic might create suspicion as to whether Cuba

had a contract with the clinic, there is no evidence raising a fact issue that Randle

knew, at the time he settled the personal-injury lawsuit, there was a reasonable 

probability that Cuba and the clinic had entered into a contract. Absent such 

evidence, the lawyer’s settlement of the personal-injury lawsuit cannot constitute 

intentional interference. Intentional conduct means that “the actor desires to cause 

the consequences of his act, or that he believes that the consequences are 

substantially certain to result from it.” See Sw. Bell Tel. Co. v. John Carlo Tex., Inc.,

843 S.W.2d 470, 472 (Tex. 1992) (citation omitted). At most, the clinic speculates 

that the lawyer should have suspected a contract existed because Cuba received 

treatment at its facility. Suspicion without more “does not rise to a level sufficient 

to create a fact issue” as to the lawyer’s knowledge. Jannise v. Enter. Prods.

Operating LLC, No. 14-18-00516-CV, 2019 WL 3432171, at *5 (Tex. App.—

Houston [14th Dist.] July 30, 2019, no pet.) (mem. op.); see also Steinmetz & Assocs.

Inc. v. Crow, 700 S.W.2d 276, 280 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). 

If the lawyer did not know of an existing or reasonably likely contract with a third 

party, then he could not have intended to interfere with that contract. Jannise, 2019 

WL 3432171 at *5.

The clinic also argues that the trial court should not have rendered summary 

judgment on its tortious-interference claim because Randle is not credible and his 

lack of credibility creates a fact issue for the jury. However, Randle’s credibility is 

only material to consideration of his traditional motion for summary judgment and

his corresponding affidavit. See Tex. R. Civ. P. 166(c), (f). Because we conclude 

that the trial court properly rendered summary judgment on no-evidence grounds, 

we need not address these credibility issues or the lawyer’s affirmative defenses of 

privilege and justification and limitations as they pertain to tortious interference. See
10

Tex. R. App. P. 47.1. Concluding there is no evidence raising a fact issue regarding 

the “intentional” element of the clinic’s cause of action for tortious interference with 

a contract, we affirm the trial court’s summary judgment in Randle’s favor on this 

claim.

2. Money had and received

The clinic pleaded that the lawyer possessed money that in equity and good 

conscience belongs to it, making an equitable claim for money had and received.

This equitable doctrine is designed to prevent unjust enrichment. Merry Homes, Inc.

v. Luc Dao, 359 S.W.3d 881, 883 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 

To prove a claim for money had and received, the plaintiff must prove that the

defendant holds money that in equity and good conscience belongs to the plaintiff. 

See Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.—Houston [14th Dist.] 2001, 

no pet.); Staats v. Miller, 243 S.W.2d 686, 687 (Tex. 1951). Thus, an essential 

element of the clinic’s claim is proving that some part of the client’s settlement 

proceeds belong to the clinic. See Am. Petrofina Co. of Tex. v. Panhandle Petroleum 

Products, Inc., 646 S.W.2d 590, 592 (Tex. App.—Amarillo 1983, no writ).

The lawyer’s motion identified these elements and argued that the lawyer 

“does not, and has never held money belonging to Plaintiff.” Accordingly, Randle 

identified the elements of the claim on which there was no evidence. 

Once a no-evidence summary-judgment movant meets its burden to identify 

the element of the claim at issue on which no evidence exists, the nonmovant must 

come forward with more than a scintilla of probative evidence raising a genuine 

issue of material fact as to the challenged element. See Tamez, 206 S.W.3d at 582. 

The clinic failed in this burden. Although the clinic specially excepted to the money 

had and received part of Randle’s motion, the court overruled the special exception, 

and the clinic did not alternatively, or subsequently, address the merit of the motion 
11

or present evidence in response to the money-had-and-received claim. In particular, 

the clinic did not attach to its summary-judgment response an authenticated copy of 

the assignment allegedly signed by Cuba that forms the basis of its claim. The 

agreement’s existence is not established in the record. For these reasons, the clinic 

failed to present evidence that the lawyer has any money “belonging” to it. 

We affirm the trial court’s summary judgment in Randle’s favor on this claim.

3. Unjust enrichment

In the lawyer’s motion, he argued that he was entitled to summary judgment 

on the unjust-enrichment claim. The lawyer argued that he owed no duty to the 

clinic absent knowledge of an assignment of benefits or a letter of protection. In 

particular, he argued that a lawyer has no duty to disburse or safeguard funds in 

which a third party claims an interest unless the lawyer is aware of the third party’s 

claim. Citing Texas State Bar Ethics Opinions, the lawyer asserted that unless a 

lawyer is aware that a third-party claimant has an interest in client funds held by the 

lawyer, the lawyer must deliver client funds to the client in accordance with Rule 

1.14 of the Texas Disciplinary Rules of Professional Conduct. The lawyer presented 

summary-judgment evidence that he was not aware of any assignment of benefits 

that Cuba may have signed in the clinic’sfavor. He stated that: (1) he never received 

a copy of Cuba’s prior attorney’s file; (2) he had no contact or correspondence with 

the clinic; (3) the records the lawyer discovered included no copy of any assignment 

of benefits to the clinic; (4) “up to the time that the funds were disbursed, no one at 

S. A. Randle & Associates, P.C., including Sarnie A. Randle, Jr., had received or 

been notified about any claim or bill owed to Plaintiff”; and (5) “[a]t no time during 

my representation of Mr. Cuba was any claim for or on behalf of Plaintiff asserted 

or made known to me or any member of my staff.” 
12

A party may recover under an unjust enrichment theory when one person has 

obtained a benefit from another by fraud, duress, or the taking of an undue 

advantage. See Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 

(Tex. 1992). Proof that Randle lacked knowledge of the alleged assignment by Cuba 

benefitting the clinic necessarily defeats any claim that the lawyer obtained a benefit 

from the clinic by “fraud, duress, or the taking of an undue advantage.” Fraud is a 

false material misrepresentation that (1) was either known to be false when made or 

was asserted without knowledge of its truth, (2) was intended to be acted upon, (3) 

was relied upon, and (4) caused injury. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 

242 (Tex. 2001). Randle’s evidence disproves the existence of any fraud in 

disbursing the settlement funds as he did because there was no misrepresentation or 

omission known to be false or asserted without knowledge of its truth. Additionally, 

the lawyer could not have taken “undue advantage” of the clinic when the lawyer 

was unaware of any assignment in plaintiff’s favor or that the plaintiff claimed an 

assignment existed. There is no indication of duress either, as Randle presented 

evidence that he had no contact or correspondence with the clinic at any time before 

the settlement proceeds were disbursed, and Randle lacked knowledge of an 

assignment. Duress is defined as a threat to do some act that the threatening party 

has no legal right to do. Randle v. Mid Gulf, Inc., No. 14-95-01292-CV, 1996 WL 

447954, at *2 (Tex. App.—Houston [14th Dist.] Aug. 8, 1996, writ denied) (not 

designated for publication) (citing Creative Mfg., Inc. v. Unik, Inc., 726 S.W.2d 207, 

211 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.)). The threat must be of such 

character as to destroy the free agency of the party to whom it is directed and cause 

him to do that which he would not otherwise do and was not legally bound to do. Id. 

Construing this part of Randle’s motion as a traditional summary-judgment 

motion, Randle’s argument and evidence defeat the elements of unjust enrichment 
13

as a matter of law because, if the lawyer’s evidence is true, then it defeats any fraud, 

duress, or undue advantage. The clinic did not present evidence creating a genuine 

issue of material fact on this claim. Accordingly, we affirm the trial court’s summary 

judgment in Randle’s favor on the clinic’s unjust enrichment claim.

Our dissenting colleague would reverse the summary judgment on this claim 

because he concludes that Randle’s motion failed to adequately address the unjustenrichment claim. For the reasons stated, we respectfully disagree. The motion 

presents a legal argument and supportive evidence conclusively disproving at least 

one element of the unjust enrichment claim. 

4. Breach of third-party beneficiary contract

The clinic asserted a claim for breach of a third-party beneficiary contract. It 

alleged that Randle “personally agreed to satisfy all liens as a condition of the 

underlying settlement(s).” According to the clinic, it is an intended third-party 

beneficiary of those agreements, and Randle breached them by failing to satisfy all 

liens—including the clinic’s lien—from the settlement proceeds.

In his hybrid motion, Randle sought summary judgment under both traditional 

and no-evidence standards because he argued in the motion that there is no evidence 

of breach, and that the evidence presented conclusively disproves breach. As to the 

no-evidence ground, Randle specifically identified the element of the clinic’s claim 

on which it could produce no evidence—breach. This is sufficient to satisfy noevidence standards for summary judgment. See Tex. R. Civ. P. 166a(i); Timpte 

Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11 (Tex. 2009). Randle also argued that 

the evidence proves conclusively that no breach occurred, thereby seeking summary 

judgment on traditional grounds by conclusively disproving an element of the 

clinic’s contract claim. 
14

Regardless whether we construe Randle’s motion as asserting a right to 

judgment under no-evidence or traditional summary-judgment standards, Randle 

made essentially the same point. Specifically, Randle argued that he did not breach

the contract at issue—the release agreement between Cuba and the defendants in the 

client’s personal-injury lawsuit—because the clinic never asserted its lien or claim. 

Randle based his argument on the following language in one of the releases:

Claimant and his/her attorneys, if any, agree to satisfy any and all liens 

asserted. This includes, but is not limited to, any lien asserted by: a 

hospital, a healthcare provider, Medicare, Medicaid, or worker’s 

compensation. Claimant and his/her attorneys, if any, agree to satisfy 

any and all subrogation claims of any health insurer related to expense 

incurred for the treatment of claimant following the occurrence.

(Emphasis added). According to Randle, this language means that the release 

applied only to a lien or claim known at the time it was executed; that is, he had a 

duty to satisfy only those liens that had been “asserted” by the date of the settlement. 

Because the clinic had not asserted its lien by that date, Randle continues, he did not 

breach the contract.

The language on which Randle relies, however, does not support his position. 

The release does not state that the “Claimant and his attorneys” are only responsible 

for those liens known at the time of execution. Rather, the release broadly requires 

“Claimant and his attorneys” to satisfy “any lien asserted.” Randle’s argument is 

based on the premise that the contract at issue was not breached because the clinic

never asserted a claim, when, in fact, it is undisputed the clinic has asserted a claim. 

The evidence cited by Randle does not conclusively negate a breach of contract. 

Because the record contains evidence that the clinic asserted its lien that has 

not been satisfied, Randle is not entitled to summary judgment either on no-evidence 

or traditional grounds with respect to the contract containing the text Randle cites. 
15

Further, although Randle argued in his motion that the release agreement was 

never breached, he directed the trial court (and directs us) to only one release 

agreement, when in fact there are two.7 Only one release agreement in our record 

contains the language discussed by Randle in his motion and by this court in the 

preceding paragraphs. The other release agreement includes no similar language 

requiring the claimant and his attorney to satisfy all “liens asserted.” Thus, Randle

moved for summary judgment as to the clinic’s breach of third-party beneficiary 

contract claim as to one contract but not both. It is error to grant summary-judgment 

relief not requested in the motion. Said v. Sugar Creek Country Club, Inc., No. 14-

17-00079-CV, 2018 WL 4177859, at *5 (Tex. App.—Houston [14th Dist.] Aug. 31, 

2018, pet. denied) (mem. op.). Because the summary judgment grants the lawyer 

full relief on this claim when the motion argued that only one contract was not 

breached, the trial court erred. And because the lawyer does not address any other 

element of the contract claim, including whether the clinic can establish its status as 

a third-party beneficiary, we conclude that he did not establish a right to summary 

judgment as a matter of law. See Frost Nat’l Bank, 315 S.W.3d at 508-09. Thus, 

the trial court erred in rendering summary judgment on the clinic’s third-party

beneficiary of a contract claim. 

We sustain the clinic’s second issue in part as to its third-party beneficiary of 

a contract claim, and overrule the remainder of the issue.

8

7 The $60,000 settlement was funded with two $30,000 payments by or on behalf of two 

insurers. Cuba signed two separate and distinct release agreements.

8

In his hybrid motion and on appeal, the lawyer also makes the argument, not specifically 

tied to any cause of action, that he was not aware of the client’s assignment of benefits to the clinic, 

and therefore had no obligation to the clinic as a third party. While the lawyer’s arguments are 

somewhat unclear, the duty he addresses is the duty an attorney owes to the attorney’s client as 

well as to third parties under the Texas Disciplinary Rules of Professional Conduct. Tex. 

Disciplinary Rules Prof’l Conduct R. 1.14, reprinted in Tex. Gov’t Code, tit. 2 subtit. G, app A 

(“Safekeeping Property”). The lawyer cites to ethics opinions issued by the Professional Ethics 
16

Conclusion

We overrule the clinic’s first issue and sustain in part and overrule in part its 

second issue. We reverse the portion of the trial court’s judgment rendering 

summary judgment in Randle’s favor on the clinic’s claim for breach of a third-party 

beneficiary contract. We affirm the remainder of the trial court’s judgment as 

challenged on appeal. We remand the case to the trial court for further proceedings.

Tex. R. App. P. 43.3.

/s/ Kevin Jewell

Justice

Panel consists of Justices Wise, Jewell, and Spain (Spain, J., concurring and 

dissenting).

Committee of the State Bar of Texas that interpret the Texas Disciplinary Rules of Professional 

Conduct as not creating any duty on the part of an attorney to a third party when the attorney has 

no knowledge of a third party’s interest in a settlement. This argument is immaterial as the clinic’s 

live pleadings did not assert a breach of the Disciplinary Rules. Though the lawyer does not direct 

this argument toward any specific cause of action pleaded by the clinic, duty is not an element of 

any of the clinic’s live causes of action. Therefore, the lawyer’s argument does not defeat any 

element of the clinic’s remaining causes of action.