Affirmed in P art, Reversed in Part, and Remanded, and M ajority and

Concurring and Dissenting Opinion s filed May 4 , 202 1

.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00145

- CV

REGIONAL SPECIALTY CLINIC, P.A., Appellant

v . S.A. RANDLE & ASSOCIA TES, P. C . AND SARNIE A. RAN DLE, JR

. , Appellee s

On Appeal from the 157th Di strict Court

Harris County, Texas Trial Court Cause No. 2017

- 81941

C ONCURRING AND DISSENTING OPINION I join the court ’ s opinion in its di sposition of issue one

. I also join the co urt in i ts aff irmance in part of the lawyer ’ s summary judgment as to the clin ic ’ s claim of tortious interfe rence, and reversal in part of the lawyer ’ s summary judgment as
to the clin ic ’ s claims of breach of third

- party beneficiar y contract , and re mand of the case to the trial court

. However, I di s agree with the court ’ s disposition of the lawyer ’ s summary
-

judgment motion on the clinic ’ s money
- had

- and

- received and2

unjust

- enrichment claims

. T he lawyer mov e d for n o
- e v i dence summary judgment on all t he clinic ’ s cla im s : “ I n this No

- Evide nce Mot ion for S ummary J udgment, D efenda nt c ontends
th at there is no evidence on each element of Plaintiffs ’ t ortious interference,

t hird

- party bene fi c ia ry claims, as well as Plaintiffs ’ cla ims all eg ing m oney had and recei ved an d unjust e n ric hment, and eac h such claim is barred b y the appl icable

s t a tute of l i mitatio ns

. ” Such a broad no

- evidence motion is not allowed . Tex. R. Civ. P. 166a (i) ( “The motion must state the elements as to which there is no evidence. ”) ; se e Cmty. Health Sys. Pro f ’ l Ser v s

. Corp. v. Hans en , 525 S. W.3d 671,
695

– 9 6 (Tex. 2 017) ; Timpte I ndu s., Inc. v. Gish , 286 S .W.3d 30 6, 310

– 11 (Tex.
2 009)

. T h is court , h owever, reache s the opposite conclusion a nd determines that the lawyer properly asserted a no

- evidence motion based on the following language : To pr ove a cla im for money had and received , th e Plaintiff must prove that the Defend ant holds money, that in equity and good conscience, belongs to the Plaintiff. L’Arte de Mode, Inc. v. Neiman M arcus Group , 395 S.W.3d 291, 296 (Tex. App.

— Dallas 2013, no pet .). It is

u ndisputed that Defendant ne ver made a claim for Plaintiff’s medical

c harges, never received a settlement that included any amount for Pl aintiff’s charges, and therefore Defendant d oes not, and has never held money b elonging to Plaintiff.
The cou rt exp lains that the lawyer “ identif ied th e eleme nts of the cl aim on which
th ere was no evidence

. ” Howeve r, the lawyer ’ s summary
- judgment motion never actually does this. The lawyer was clearly asserting traditional

- summ ary
- j u dgment grounds in the quoted p aragraph

— th at he h as never h e ld an y mone y be longi ng to
t he clinic

—

be c ause he never made a claim that included t he clinic ’ s me dical charges and never rec e iv ed a settlement that included any amount fo r t he clinic ’ s cha rges. Hol d ing that the lawyer met his b u r den under Rule 16 6a(i), th is court3

affirms the trial court ’ s summary judgment in the lawyer ’ s favor on this claim because the cl inic did not produce eviden ce raising a genuine issue of material fact in response

. T ex. R. Civ. P. 166a(i). 1

This court also affirms tr a ditional summary judgm ent on the clinic ’s unjust

- enrichmen t cl aim w hen t he lawyer stated no such specific ground for that claim . Rule 166a( c ) requir es that , and so does the supreme court. Tex. R. Civ. P. 166a(c) (“ T he motion for summary judgmen t shall stat e the specific grounds therefor.” ) ; see McConnell v. Southsid e Indep. Sch. Dist ., 858 S.W.2d 337, 341 (Tex. 1993)

.

“ Construing ” the lawyer ’s various arguments as a traditional
summary
- judgment motion, t he co urt det e rmines that the lawyer ’ s lack of knowled g e of his client ’ s assignment of benefits disp roves the cli nic ’s unjust

- enri chment cause o f action. On appeal, the lawy er sta tes there wa s n o u njust

en r ichment bec ause the client ’ s se t tlement amount was not increas e d because of the use of the cl i nic ’ s bill i ng records or charges. However, the lawyer did not make

t his argume nt below and the trial court was limited to the gro unds e xpressly
pre sented in the m otion. See Tex. R. Ci v . P. 166a (c); T imp te Indus. , 286 S. W .3 d a t 310 ( “ It is well settled t ha t a trial co urt cannot grant a summar y judgmen t motio n on grounds not presented in the m o tion

. ” ). The lawyer made only the following statements about his unjust

- enrichme nt

c laim :

• “ In th is No

- Evidence Motion for Summa ry Judgmen t , Defendant contends that the r e is no evi den ce on ea ch element of Plaintiffs’ tortious interference, third

- party beneficiary claims, as well as Plaintiffs’ claims alleging mon ey

1 The l awyer had alternate summary
- judgment g r oun d s to dispose o f the money
- had

- and

- received claim, which the court does not reach. N one of thos e other ground s are viab le

.4

had and received and unjust enrichme nt, and each such claim is barr ed by the a pplicable statute of limitati o ns. ”

• “ Defen dan t conten ds that the u ndisputed facts reveal that Plaintiff has no valid claim against Defendant because there is no evidence that Defe ndant was aware of the assignment of benefits

. . . . ”

• “ Plaintiff n ever asser t ed or notified Defendant, in a ny manner, at any time , about the a ssignment and Defendant does not have, never collected, never received, and never had possession of any money belonging to Plaintiff. ”

T h e lawyer do es argue (in a section entitled “Absent K nowledge of an Assig nment of B enefits or a L etter of Protection De fendant Owed no Duty to
Plaintiff ” ) that he had no knowledge of the assignm ent and therefore no duty to the clinic u nder the Texas Disciplinary R u les of Professional Conduct . Howev er, this

a rgument is not specific to an y cause of a cti on and th e lawyer never ex plains h ow his lack of knowledge or lack of duty disproves the unjust

- enrichment claim ( or any other claim )

. Though the lawyer never explains how his lack of knowledge of the assignmen t between the clinic and his c l i ent dispro ves th e clin ic ’s claim for unjust
enri chment, th is court makes the argument fo r him. The court concludes the lawyer presented proof that he had no knowledge o f the assignment and without kno wledge of the assignment the lawyer prove d that he di d not ob tain a b enefit by “fraud, dures s, or the t aking of u ndue advantage. ” The court expressly states that the law yer could not have taken “ un due advantage ” of the clinic when the lawyer was unaware of the an y assignment in t h e clinic ’ s favor.

The clinic ’ s summary
-

j u dg ment response ackno wledge d that the lawyer ’s
summary
- judgme nt motion is r o oted in his lack of knowledge of the assignment.
Howev er, the clinic argued mo re broadly that the lawyer knew of his cli ent ’s

treatment at the clinic and relied on the c linic ’s me d ic al records and treat ment a s5

part of his cl ient ’ s claim. The clin ic also points out that the law yer obtained a $ 60,000 personal

- injury settlement for his client based in part on his client ’ s need to pay medical ex p enses o f $24, 044.65, only $5 0 0 of which w er e ever paid to any of the me dical providers. Thus , the question of unjust enrichment and undue advantage is raised with or witho ut the lawy er ’s knowledge of the assignment of ben efits. Summary ju dgment is an effi c ient means to resolve dispute s and achieve
f inality. But this is not a case for such a f inal resolution. I would reverse the trial

court ’ s judgment on the clinic ’ s money
- had

- and

- received , unjust

- enrichment and breach of third

- par

ty

- beneficiary

- cont ract cl a im s , affirm in part on the remaining issues as challenged on appeal, and remand the case to the trial court for further proceedings

. Accordingl y, I respectfully concur in part and dissent in part to this

court ’ s judgment.

/s/ Cha r l e s A. Spain Jus tice

P anel co nsis ts of Jus tice s W i se, J ewel l , and Spa i n

. (Jewell, J., m ajor ity).