Reversed and Remanded and Memorandum Opinion filed July 6 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 19
- 00586
- CV
SVT, LLC AND ROBERT ORR , Appellant s

V. SEASIDE VILLAGE TOWNHOME ASSOCIATION, INC. , Appellee

On Appeal from the 215th Dist ri ct C o urt

Harris Co unty, Texas Trial Cou r t Cause No. 2015
- 64585

MEMORANDUM OPINION Appellee Seaside Village Townhome Association, Inc. ( “ Seaside ” ) filed suit against appellants SVT , L.L. C and Robert C. Orr ( collectively , “ SVT ” ) to quiet title to a plot of va c a nt land

. The tri al court granted summ ary judgment finding Seaside the owner of the vacant lot. The trial court also gr anted Seaside ’ s motion for summary judgment on SVT ’ s unjust enrichment counterclaim after SVT failed to file a summary judgment res pons e
. SVT fi le d a mo tion for new tr ial, which was overruled by operation of law. In a single i ssue on appeal, SVT argues that the trial2

court erred by failing to grant its motion for new trial. We reverse and remand

. I. B ACKGROUND Orr is the principal of SV T , L. L

. C

. , but also served on Seas ide ’ s Board of Directors. SVT is a real estate develope r that developed a residential community know n as “ Se aside Village ” in Seabrook, Texas. Seaside is the homeowner ’ s association for Seaside Village. I n A ugu st 2014, in accor d an ce with subdivision de cl arations, SVT transferred control of the subdivision to Seaside

. However, SVT retained title to the common area of a vacant plot of land , which the parties refer to

as the “ Repsd orph Property

. ” I n 20 15, Seaside f

iled suit to qui et t itle to t he Repsdorph Property and also sought damages based on claims for breach of f iduciary duty and breach of
cont ract. SVT file d counterclaims to quiet title to the Repsdorph P roperty, and soug ht a decl aratory jud gme nt seeking title and possession , in addition to a claim for unjust enrichmen t

. SVT sought reimbursement from Seaside for the fo llowing expenditures : (1) $17,615.52 in loa ns t hat SVT allegedly made to Seas ide; (2) unspecified amoun ts paid to improve and re

- plat the plo t ; and (3) unspecifie d
amounts of property taxes tha t SVT paid on the Repsdorph Property. Both sides filed motions for summary judgment . On May 27, 2016, the trial court granted Seaside ’ s motion for pa r t ial summ a ry ju dgme nt and dec lared that Seaside owned the Repsdorph P roper ty

. On Nov ember 7, 2016, t he tria l court entered an order severing Seas ide ’ s claims to quiet title, declaratory judgment that SVT ’ s Declaration Amendment is invalid, and Orde r for D efend ant s to rescind the Decl aration Amend ment in the Harris C o unty Real Pr op erty Records, assigning a new cause number to the severed case

. SVT appeal ed the decision to this Court , where we affirmed the trial court ’ s decision in favor of Se asid e
. See S VT, L. L.C. v. Seaside Vill. Townhome Ass ’ n, Inc. , No. 14

- 1 7

- 00012

- CV, 2018 WL 31 51396, at3

*9 (Tex. App.

— Houston [14th Dist.] June 28, 2018 , no pet.) (mem. op.). On December 2, 2016, the trial court g ranted summary judgment in favor of SVT on Se asid e ’ s “ bre ach of contract an d breach of fid uciary duty

— piercing the co rporate veil ” c lai ms
. In February 2019, Seaside moved for t ra d itional summary judgment on SV T ’ s remaining coun terclaims for slander of title and eq uitable reimbursement , a nd for no
- ev i d ence summary judgment on SVT ’ s counterclaims for quantum meruit and adverse possession

. T he hearing was originally set for February 28, 2019, but SVT ’ s counsel requested a one

- w eek extension due to a conflict . On F e bruar y 22, 2019, SVT an d Seaside entered into a Rule 11 Agreement wherein SVT ackno wledged that its clai m concerning ownership of th e Repsdorph Property had already been adjudicated. Accordingly, SVT agr eed that the only pending counterclaim SV T poss essed was for unjus t enri chment. Furthermore, because of this agreement , the parties agreed to forego the hearing set for Februar y 28 an d , according to SVT, agreed to re schedule the hearing to a fut ure date. On the same day Seas i de fi led the Ru le 11 Agr eement with the court, Seaside filed an amended notice of hearing , setting t he summary judgment for hearing on April 18, 2019. Dani elle But le r ( “ Butler ” ) , a paralegal for S VT ’ s counsel in char ge of calendaring all hea rin g s and deadlines within the fir m , was listed as the default service contact in the cou rt ’ s e
- filing system

. F or unknown

reasons , Butler was n ot notified of th e hearing. Howeve r, S VT ackn o w l edges that

no tification of the hearing wa s sent to two of its attorn eys: Ashish Mahendru ( “ Mahendru ” ) and Darren Braun ( “ Braun ” )

. Although Mahendru and Braun were notified of the summary judgment hear ing, they alleged that they believed that Bu tler had also received the notificati o n
. A s a result , the attorneys did not calen dar the hearing and subsequently did not respond to t he m otion for summary judgment or attend the oral hearing

.4

On Ap ril 18, 2019, the trial court granted Seasid e ’ s traditio na l motion for

su m mary judgment o n SVT ’ s unjust enrichment claim. On May 17, 2019, SVT filed a motion for new trial , “ and /or ” leave to file a late summary judgment response , arguing that : (1) its fail ure to file a summary judgment resp o n se was not intentio na l or the resu l t of cons cious indifference ; (2) it had filed, w ith the motio n for new trial, a summary judgment r esponse that established a question of fact on its unjust e nrichment claim; and (3) Seaside would no t suffer any undue de la y or other injury i f t he m oti on fo r new tria l were granted

. SVT att a ched to its motion for new trial a n unsw orn declaration by its counsel, 1 Mahendru. In his de claration, Ma hend ru states that “ the e

- filing system did not send notification to Danielle Butler, the firm ’ s paral eg al, who is in charge [of] p roce ssing a n d calendaring all hearing s and deadlines within the firm. Ms. Butler is listed as ser vice contact s [ sic ] on the e

- filing website for this case, and has been for the past several years. ” 2 Mahendru ’ s d ecla r ation f urth er s tated tha t : while [atto rneys Mah e ndru and Braun ] received the e

- filing noti fication, they mistakenly expected that Danielle Butler had also received the notification and had appr opriately calendared the hearing date and deadlines con tai ned i n the f ilin g. But because Ms. Butler actu a lly did not receive it, no one at the firm calendared the hearing date or the due date for the response , and did not attend the oral hearing.

1 See Tex . Civ. Prac. & Rem. Co de Ann. § 132.001 ( a), (d) (providing that an unsworn d ecl aration may be use d i n lieu of a written sworn, declaration or affidavit required by statute or required by a rule, ord er, or requirement adopted as provide d by law). Mahendru ’ s declaration was in writing an d stated “ I declare under penalty of perjury t hat the fol lowi ng fact s are true and correct and within my personal knowledge

. ” This substan tial ly compli e s with § 132.001

. See id. ; se e al so Beonney v. U

.S. Bank Nat ’ l A ssoc. , No . 05

- 15

- 01057

- CV, 2016 WL 3902607, at *3 (Tex. App.

— Dallas July 14, 2016, no pet.) (mem. o p.) (conc lu ding that main requirements under § 13 2.001 are that dec laration be in writing and subscribed by d eclarant as t rue under penalty of perjury ).

2 M ahendru ’ s declaration incl udes an image showing M ahendru, Braun , and Butler as the listed law firm service c on tacts for the underlying case

.5

. . . SVT ’ s counsel fir st learned of the summary judgment o rde r [ the e vening it w as signed], when they received a Case Subscription report from the Harris County District Clerk. Immediately, I investigated what happened and, for th e first time, realized that the e

- service notification for the amended notice of hearin g o mitt e d Ms. B utle r as shown in the filing detai l s below

. . . . 3 The moti on for new trial was set for oral hearing on Ju ly 25, 2019. In its

r esponse, Seaside averred tha t S VT ’ s mo tion for new trial was overruled by ope ration of law on Ju ly 2 , 2019, sev enty

- five days aft er th e jud gment was signed , bu t note d the court r etained plenary power until August 1, 2019

. See Tex. R

. Civ. P . 329 b (c) )

. SVT filed a timely notice of a ppea l on Jul y 23, 2019. 4 II. A NALYSIS In a single is sue, SV T arg ues that it establish ed its ent it lement to a n ew trial under both the modi fied Craddock test and the Carpenter test , and t hus, the trial court abused its discretion by failing to grant its motion for new trial

. See Carpenter v. Cimarron Hydr oca rbon s Corp. , 98 S.W.3d 6 82 , 688 ( Tex. 2002) ; Craddock v. S un shine Bus Lines, Inc. , 133 S.W.2d 124, 126 (Tex. 1934 )

. A. S TANDARD OF R EVIEW & A PPLICABLE L AW We review a trial court ’ s denial of a motion for new trial for abuse of discretion. See In re R.R. , 2 09 S.W. 3 d 112, 114 (Tex. 20 06) (per curiam) ; D ir., State Emp s
. Workers ’ Comp. Div. v. Eva ns , 889 S.W.2d 266 , 268 (Tex. 1994). A trial court abuses its discretion if “ it renders an arbitrary and unre asonable decision

3 Mahendru ’ s declaration included a n image of the e

- ser v ice notifi c ation listing only Mahendru and Braun as the s ervice contacts f or their law firm.

4 We note that the trial court held a hearing on July 25, 2019

. Seaside at t empted to present witne sses ; howe ver, the tri al court re fu sed to hear witness testimony and informed the part ies that the cour t clerk w ou ld reach out ab out scheduling an evidentiary hearing pertaining to the motion for new trial

. It is unclear from the re cord why the trial court did not hold the evidentiary hearing.6

lacking support in the facts or circumst anc es o f the ca se. ” S amlowski v. Woo ten , 332 S .W.3d 404, 4 11 (T ex. 2011)

. To overtur n a default judgment, the movant must de mon strate that : (1) the failure to reply to the motion for summary judgme nt was not intentional or the result of conscious indiffer enc e , b u t was d ue to an acc ident or mistake; ( 2) the motion f or new trial sets up a m e ritorious defense; and (3) a new trial would cause no undue delay or injury to the nonmovant. See Dolgencorp of Tex., Inc. v. Lerma , 288 S

. W.3d 922, 92 5 (Tex. 2009) ; Crad doc k , 1 3 3 S.W.2 d at 126

. Ho wever, in a
no
- answ er summary judg me nt , when a party fails to respon d to a motion for

su mmary judgment, courts have applied a modified version of the Craddock factors. Se e Weech v. Baptist Health Sys. , 392 S.W.3d 821, 825

– 26 (Tex . A pp.

— S an Anto ni o 2012, no pet.) ; H uffine v. T

omball Hosp. A ut h. , 979 S.W.2d 795, 79 8

– 99 (Tex. App.

— Houston [14th Dist.] 1998, no pet.) ; see also Varady v. Gyorfi , No. 09

- 15

- 00237

- CV, 2016 WL 1468 859, at *4 (Tex. App.

— Beau mont Apr. 14, 2016, no pet.) (mem . o p.)

. In the mo dified version of C raddock , t he first and th ir d eleme nts are the sam e ; however, under the second prong , instead of setting up a

“ meritor ious defense, ” the modified Craddo c k test re quire s the movant to raise a material question of fact in i ts moti o n for n ew trial. See Weech , 392 S.W.3d at 825

– 26 ; Huf

fi ne , 979 S.W.2d at 798

– 800

. In Carpenter , the Texas Supreme Court held that a motion for leave to file a late summary
-

judgment response should be granted if the movant can establish the first an d t hird Craddoc k elements. See Carpe nter , 98 S .W.3d at 688

. B. A PP LICATIO N We first addr ess the stand ard of review. SVT states that it is unclear as to whether the Carpenter or the modified Craddoc k test applies in this instanc e
. Carpenter generally applies w hen a p a rty lea rns of the summary ju dgment hea ring before the h earing date but aft er the dea dline to file a response. See id. Bec ause7

SVT technically received notice of the hearing before the de adline to fi le a response but failed to file a response until aft er t h e sum ma ry j udgment hearing d ue to an a lleged mistake , w e will apply the mo dified Craddock test. See Weech , 392 S.W.3d at 825

– 26 ; Huffine , 979 S.W.2d at 798

– 800

. 1. SVT ’ S F AILURE TO R E SPOND WAS N O T I NTENTIONAL OR THE R ES ULT OF C ONSCIOUS I N DIFFEREN CE Un der th e first p ro ng, we must determi ne if SVT ’ s failur e to re pl y to the motion for summary judgment was intentional or the result of c onscious indifference or w hether it was due to an accident o r mistake

. See Dolgencorp , 288 S. W.3d at 926

. Texas courts app ly th e f irst el em ent of the Craddock test libe rally. G otcher v. Barnett , 757 S.W.2 d 398, 402 (Tex. App.

— Houston [14th Dist.] 198 8, no writ). Under this lenient standard, even negligence of couns el “ will not preclude the sett ing aside of

” summary judgment. Bec k v. Palacio s , 813 S.W.2d 643, 64 5 (Tex. Ap p.

— Houst on [14 t h Dist.] 199 1, no pet .). Generally, “ some excuse, although not nece ssarily a good one, will suffice to show that a defendant ’ s failur e t o fil e an answer [or appear ] was not because the defend a nt did not care. ” In re R.R. , 209 S.W.3 d at 115. The abse nce of an intentional failur e to answer or appear, rather than a real excu se for not answering , is the controlling fact or
. See Milestone Ope rating, Inc. v. Exxon Mobil Cor p. , 388 S.W.3d 307, 3 10 (Tex. 2 0 12) (pe r curiam ) (c iting Craddock , 1 33 S.W.2d at 125 )

. During t he J uly 25, 2019 m otion for new trial hearing, co u nsel for Seaside argued SVT should ha ve been aware of the hearing date because b oth attorneys were served with notice, and a Rule 11 agreement to res e t the s ummary judgment from March was “ followed up ” by t he amended notice of hearing

. SVT averred the Rule 11 Agreement to reset the hearing did not establ ish a new date for the hearing (2RR5) , and further alleged that Butler i s in ch arge of proces sin g an d calend aring all incoming no tice s of h earings , and all o the r deadl ines for the firm. SVT admitted8

that SVT ’ s counsel received notification of the s ummary judgment hearing ; h owever, SV T alleged that Butler, th e person listed as the default service c ont act f or SVT ’ s law firm, did not r eceive the notification an d surmi sed that But l er did not get served with notice of the new date either because she was dropped from the service list, or a different platform for ser v i ce was u sed

. Thus, SVT ’ s couns el did

n ot cale ndar the hearing th em selv es bec ause the y mist akenly be li eved that B utle r had received the same notification and had cal end ared the hearing

. But because Butler did not receive the n otification, the hearing was not cale ndared. The arguments of SV T ’ s c ounsel at the hearing were consi s tent with an d support ed by M ah end ru ’ s declaration

. S easide argu es SVT was consc iously i ndifferent, whereas SVT argues that it simply m a d e a “ b i g m i s t a k e
. ” We conclude tha t SVT satisfied th e Craddock factors

. Seas ide ar gues th at th is c ase is similar to Prince v. Pr ince , where in the ap pe llant knew he was being sued for divorce, acknowl edged receipt of t he petition, and had notice from his wife at least a week prior to the hearing that she

was going to get the divor ce , but sti l l faile d to file an a nswer or make any inquiry about the impo rt of the “ papers ” he received. See 912 S.W.2d 367, 369

– 7 0 (Tex. App.

— H ouston [14th Dist.] 1995, no pet.). However, in Prince , we concluded that

“ the appellant m ade no in quiry, and neith e r s ough t h elp n or a dvice ab ou t the import of the ‘ papers ’ he had rece iv ed. ” By contrast, S V T did not activel y ignore the notice i nforming it of the hearing date. Instead, counsel did not calendar the hearing because they mistaken ly believe d Butler received th e no t i fica ti on and would calend ar it for c ounsel

. Furthermo re, in it s motion for new trial, SVT included the notification receipt from the e

- filing system , which evidenced that SVT ’ s counsel was notified , but not Butler. Here, SVT ’ s co unsel r eas o nab l y expla ined his failure to answer and app ear at the summar y judgment hea ri ng by p r esenting uncontrover ted evidence that the9

hearing was not placed on his calendar because of mistake. Mistakes in internal office procedures and other circumstances th at r esu lt in an event n ot being properly calendared demonstrate that the fail ure t o appear and re s pond was not intentional b ut due to acci dent or mistake. See, e.g. , Evans , 889 S.W.2d at 269 ( “ M s
. Stroud ’ s predecessor simply misdated the trial date on his cal enda r and conveyed the wrong information to Ms. Stroud when she replaced him. M s. Stroud believed the case was set for a lat er date, thus, her failure to appear was not intentional, but was due to an accident or mistake. ” ); Dalmex , Ltd. v. Apparel Enter

s. , Inc

. , 455 S.W.3d 241, 243

–

44 (Tex. App.

—

El Paso 2015, no pet. ) (counsel did n o t attend hearing be cause “ it was not placed on his calend ar by mistake ” ; specifically, althou g h the notice was del ivered to the firm ’ s offices, “ the secretary who calendars [ att orne y ’ s] appointments was out for the day and did not see the notice because it wa s not delivered to h er desk pursuant to standard office procedure ” ); see also Evans v. Woodwa r d , 669 S.W.2d 154, 155 (Tex. App.

— Dallas 1984, no writ) ( “ The record also sho ws that Evans had retained counsel to represent him in this su it and that the fa il ure to file an answer w as the result of confusion in the attorney ’ s office rather than indiffere n ce on Evans ’ part. ” ); Cervant es v. Cer vant es , No. 03

- 07

- 00381

- CV, 2009 WL 368 263 7, a t * 7

– 8 (Tex. App.

— Austin Nov. 5, 2009, no pet.) (mem. op.) (concluding th at a paralegal ’ s misunder standing regarding a need to calendar an answer deadline was sufficient t o negate conscious indifference on the attorney ’ s part) ; Hubbard v. Preston , N o
. 11

- 9 9

- 00226

- CV , 2000 WL 34235122, at *2 (Tex. App.

— Eastland Aug. 17, 2000, no p et

. ) (mem. op.) (conclu ding that appellant satisfied the first element of Craddock when appellan t ’ s at torney stated that

“ failure to appear at the trial setting ‘ was not inte nti onal or due to neglec t but was a result of an ov ersight ’ in failing to calend ar t he trial setting ” )

. Based on t he evidence bef ore us , we cannot conclude that SVT ’ s failure to10

respond was intentiona l or due to conscious indiff er ence. See Dolgencorp , 288 S

. W .3d at 926 ; see also State v. Sledge , 982 S.W. 2d 911, 916 (Tex. App.

— Houston [1 4th Dist.] 1998, no pet.) ( “ More over, while the State ’ s failure to make any inquiries regarding the status of the case may constitute negligence, a defe ndant is not required to show that he and/or his agent were free of neg ligence

. ” )

. We co nclude that SV T satis fied t he first prong of the modified Craddock test. 2. SVT Raised a Materia l Question of Fact on I ts Unjust Enrichmen t Claim Und er the second prong, we must dete r mine wheth er SVT raised a ge nuine issue of material fac t on its unjust enri chment claim

. S ee Weech , 392 S.W.3d at 825

– 26 ; Hu

ffine , 979 S.W.2d at 798

– 800

. “ Unjust enrichm ent is an equitable p ri nciple holding that one who re ceives benefits unjustly should ma ke restitu tio n fo r those ben efits. ” Tex. Integrated Conve yor Sys., Inc. v. Innovat ive Conv ey or Concepts , Inc. , 300 S.W.3d 34 8, 367 (Tex. Ap p.

— Dallas 2009, pet. denied) ( op. on reh ’ g) . Unjust e nrich ment occurs wh en a person has either “ wrongfully secured

a benefit or ha s pa ssively rec eived one which it would be u nconscionable to retain

. ” Id. ; se e also J

esse n v. Duvall , No. 14

- 16

- 00869

- CV, 2018 WL 10046 59, at *8 (Tex. App.

— Houston [14th Dist.] Fe b. 22, 2018, no pet .) (mem. op .)

. Seasid e argues that unjust enr ichment is no t an independen t ca use of action. However, w e have recently rejected that arg um ent. See W a lker v. Walker , No. 1 4

- 18

- 0056 9

- CV,

__ _ S.W.3d

_ __ ,
_ __ , 2020 WL 1951 631, at *4 n.8 (Tex. Ap p.

— Houston [14th Di st.] Apr. 2 3, 2020, no pet.) (rejecting appel lan t s ’ imp lie d

ar gument that unjust enrichment is not an independent cause of action and h olding there was “ no im

pediment ” t o bringing a claim for u njust enrichment ) ; se e also Pe pi Corp. v. G alliford , 254 S.W.3 d 457, 460 ( Tex. App.

— Houston [1 st Dist.]11

2007 , pet. den ied ) ( “ Unjust enri chment is an independent caus e of action. ” )

. 5 Seaside further argues that t her e c annot be a genu ine issue of fact as to

u njust enrichment beca use it di d nothing wro n g , and SVT failed in “ establ is h ing Seaside Village ’ s unconsciona bility. ” Sim ilar ly , Seas i de argues that SVT failed to pro ve fraud, dur ess, or the taking of undue adva ntage

. However, we ha ve rejected b oth of those arguments: Ronald an d Layne a lso moved for no evidence and tr a ditional su mmary judgment on the basis that t here is n o e vide nce of “ frau d, duress, or ‘ the taking of undue advantage. ’ ” We have alre a dy held that fraud, duress or the taking of an undue advant age is not an element of unjus t enrichment, even though the d o ctrine “ is t ypically found to apply ” under one of these sc enar ios. As we s tated, “ [t]he right to recove r under an unjust enrichment th e ory does not depend on the existen ce of a wrong ” and “ [t]o obtain restitution on a theor y of unjust en richment, a wrongfu l act need n ot be shown. ” Under the doctrine, as we not ed, “ on e who receiv es benefits, even passively , which would be unjust to retain ought to make resti tution for thos e benefits. ” W alker , 2020 WL 1951631 at *4 (in ternal citations omitted) ; se e Innovative Conveyor Co ncepts, Inc. , 300 S.W.3d at 367 ; s ee also W alk er v . Walker , No

. 14

-

5 Alth ough several Texas courts of appeals hold that t here is n o such cause of a ction, the Texas Supreme Court has suggested other wis e. Compare Elledge v. F riberg

- C ooper Wate r Sup. , 240 S.W

. 3 d 869 , 870

– 71 (Tex. 2007) ( pe r curiam ) (re affirming that limitations pe riod for unjust

enrichment claims is two years) ; Wa gner & Br own , Ltd . v. Horw ood , 58 S.W. 3 d 732, 737 (Tex. 2001 ) (discussing limitations period for unjust

- enrichment claim s); Fortune Pr od. v. Conoco, Inc. , 52 S.W.3 d 67 1, 685 (Tex. 2000 ) (referring to unju st

- enrichment cause of action) ; and HEC I Expl. Co. v . Neel , 9 82 S.W.2d 881, 88 5, 891 (Tex. 1998) (referring to unjust

- enrichment cause o f action and two

- year limitations pe r iod) , with S p el lmann v. Love , 534 S.W .3d 6 85, 693 (Tex. App.

— Corpus Christi

–

Edi n bur g 2017, pet. d enied ) ( noting unjust enrichment is no t an inde pendent cause of action) ; Richardson Hosp. Auth. v. Duru , 387 S.W .3d 109, 114 (Tex. App.

— Dallas 2012, no pet.) (same) ; R .M. D ud ley Constr. Co. v. Dawson , 258 S.W.3d 694 , 703 (Tex. App.

—

Waco 2008, pet. d enied ) (same); Hulen v. Hamilton , No. 02

- 06

- 0 0288

- CV, 2008 WL 553812, a t * 4 (Tex. App.

— Fort Worth Feb. 2, 2008, no pet.) (mem. op.) (same). As note d, this C o urt has previously con cl uded that a plaintiff may b e able to bring a claim for unjust enrich ment as an independent cause of action. See W al ker v . Walker , No. 14

- 18

- 0056 9

- CV,

___ S.W.3d __

_ ,
___ , 2020 WL 1951631, at *4 n.8 (Tex. Ap p.

— Houston [14th Di st.] Apr. 2 3, 2020 , no p et.) ; Pe

pi Corp. v. G alliford , 254 S. W.3 d 457, 460 ( Tex. App.

— Hou ston [1 st Dis t.] 2007 , pet. denied)

.12

16

- 00357

- CV, 2017 WL 118 1359, at * 8 (Tex. App.

— Houston [ 14th Dist.] M ar. 30, 2017, no pet. ) (me m. op.) ( “ T he right to recover under an u njust enrichment theory does not depend o n the existe nce of a wrong. ” ) ; RDG Ltd. P ’ ship v. Gexa Cor p. , No. 14

- 04

- 00 679

- CV, 2005 WL 949171, at *4 (Tex. App.

— Houston [14th Dist. ] Apr. 2 6, 200 5, no pet.) (mem. op

. ) ( af firming that un

just enrichment does not r equire an underlying wrong t o be com mitte d ; rather, u njust en richment can be based on t he “ mere pas sive receipt of a bene fit that wo uld be uncon scionable to retain ” ). In the p r esent case, S VT alleged that it ha d bee n paying property ta x es on the R e p s dorph P roperty fo r years b ecause SV T b elieved that it owne d the pro perty

. SVT con tinued to pay unt il the May 2 7, 2016 ruling adjudicating S easide the

owner. SVT also alleged that it sp ent approximately $30 ,000 on impr oving the lan d prior to the 2016 r uling. Finally , SV T claimed in its petition that Orr had

“ loa ned Seaside approximately $1 7,615.5 2

. ” Orr testified in his deposition that he had loan ed Seaside “ approximately [$] 17,000. ” S easide makes various arguments as to why it is not “ unj ust ” for Seaside to re tain the se benefits , such as clai ming that SVT unilaterally decided to spend mon e y o n improvement s without consulting Seaside and Seas ide did not know it was receiving th ose bene f its . However , whether SVT will ultima tely prevail on th e c laim is not the i ssue before us

. W e simply conclude that SVT presented more than a sci ntilla of evi denc e that Seasid e potentially received benef its that wo uld be unconscionable to retain. S ee Weech , 392 S.W.3d at 825

– 26 ; Huffine , 979 S .W.2d at 798

– 800

. Thu s, SVT s atisfie d th e second prong of the modified Cr addock test

. See Dolgencorp , 288 S

. W.3d at 9 26

. 3. Sea side Will Not Suffer Undue Delay Under th e third prong, we must dete rmine whether SVT demonstr a ted that gra nting i ts motion for new trial wo uld cause no undue delay or inju ry to Seaside

. See id. “ T he purpo se of the t hird element of the Cra ddo ck tes t

. . . is to protect a13

plaintiff against the sor t of undue delay or injury that would result in a dis a dvantage whe n prese nting the merits o f the ca se at a new t rial, ‘ such as a lo ss of witnesses or other valuable evidence. ’ ” Id. at 929. Seaside a rgues that SV T fa iled to carry its burden to show that gra nting a motion for new trial would not cause undue de l ay to Seasid e. However, “ [ o] nce a de f endant has alleged th at granting a new t rial will not injure the plaintif f, the burd en of going forward wit h proof of in jury shifts to th e plaintiff. ” Evans , 889 S.W .2d at 270 ; see Dolgencorp , 288 S.W.3d at 929 ( “ Once D ollar Genera l alleged that granting a new tr ial would not injure L erma, the b urden of proof shifted to Lerma t o prove inj ury. ” )

. In its motion f or new tri al, SVT alleged that if a new trial were granted , Seaside would “ not suffer any undue delay o r other i njury. ” This sh ifted the b urden t o Seaside to p rove undue harm or delay. S ee Dolgencorp , 288 S.W.3d at 929 ; Ev ans , 889 S.W.2d at 270

. In its re spo nse to SVT ’ s moti on for new trial , S e aside ar gued that granting the motion or allowing SVT to file a late

res p o nse would “ del ay a final ruling in this matter , which has been pe nding for [sic] in this Court for nearly four year s. ” Ho wever, thi s d el ay will typic ally ensue when a trial cour t decides to grant a motion for new trial. Seas ide has not alleged t he type o f undue delay or harm required to p revail under the third Craddock element , su c h as “ a loss of witnesses or other valuable evidence. ” Ev ans , 889 S.W.2d at 270

. Seaside further ar gues that SV T failed in its burden to prove no undue harm or delay b ecause S V T “ ne it her off ers to pay Seaside Vi llage ’ s cost s in obtaining f inal judgment no r indicates it is ready and able to proceed to trial. ” However, neither are require ments for meeting the third Craddock factor ; th e y are merely two que stions to consider in m aki n g th e d eterminati on of whether undue delay o r in jury will occur. See Angelo v. C h ampion Rest. Equ ip. Co. , 713 S.W.2 d 9 6 , 9 8 (Tex. 1986) ; s ee also Dolgencorp , 288 S.W.3d at 929 ; Evans , 889 S.W.2d at 270

.14

Addit ionally , we note that offeri ng to pay the other party ’ s co sts normally arises in the context of default judgments, where the non movant incurs the ad ditional costs of pros ec uting a default judgment. See Europa Cruises Corp. v. AFEC Inter n. , 809 S.W.2d 783, 786 (Te x. A pp.

— Housto n [14 th Dist.] 1991, no pe t .) ( “ A n y p ossible injury to a plaintiff can be negated by an offer in a motion f or new trial to pay costs incurred by plai nt iff as a result of obtaining the default jud gment. ” )

. SVT ’ s fail ure to file a summar y judgm ent response d id not cause Sea side to in c ur add i tio nal
costs because Sea side had already filed its motion for summary jud gment. Likewise , although S VT did n ot affi rm atively state that it was willing to “ pro ceed to trial ” immed iately, the record refl ects th a t on the same day th at SVT filed it s
mo t ion for new trial, it also filed its proposed response to Seasid e ’ s motion for

s ummary judgment. This demonstrated SVT ’ s w il lingness and readiness to proceed to tria l. See Angelo , 713 S.W.2d at 98

. W e concl ud e th at SVT met its i n iti a l burden under the thi r d factor of the modifi ed Craddock test by demonstrat ing that Seaside would no t suffer any undue harm or delay. We a lso co n clude that Sea side failed in its burden to prove that it would s uffer undue delay or h arm. 4. Summar y S V T has esta blished all three elem e nts of the modified Craddo ck test. See Huffine , 979 S.W.2d 798

. The record do e s not reflect that SVT intended to

“ a ban do n or frust rate the proceedings. ” Dolgencorp , 288 S.W.3d at 930

. Therefore, we conclude th at the trial court ab use d its dis cre tion by al lo wi ng SVT ’ s motion for new t rial to be o verruled by operation of law

. We susta in SVT ’ s sole issue. III. C ONCLUSION We rev ers e the judgment of the trial court an d remand t his cause for further proceedings consistent with this opinion

.15 /s/ Margar et “ Meg ” Poissant Justice

Panel con sists of Chief Justice Chri sto pher and Justi ces Jewell and Poissant

.