OPINION
This appeal arises out of a dispute between a personal-injury lawyer and a medical provider for payment for services provided to the lawyers 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 recovery against the lawyer, the clinic alleged that the lawyer wrongfully failed to pay for medical services and treatment provided to the lawyers client, Patrick Cuba (Cuba or “client”), out of the proceeds of the clients personal-injury settlement.
The lawyer moved for traditional and no-evidence summary judgment on all of the clinics 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 Cubas medical treatment.
In July 2014, Randle settled the clients 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 clients various medical providers, and the lawyers attorneys fees. Randle then remitted the balance to Cuba. It is undisputed that Randles settlement demands did not reflect costs for Cubas 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 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 clients medical treatment. The clinics 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 lawyers summary-judgment evidence.
The trial court rendered a final summary judgment in Randles favor,
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and the clinic appealed.
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Analysis
The clinic presents two issues for our review. In its first issue, the clinic asks this court to review the trial courts rulings on its objections and special exceptions to the lawyers hybrid motion. In its second issue, the clinic argues that the trial court erred in rendering summary judgment in Randles 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 courts summary judgment does not specify the ground or grounds on which it was granted, we uphold the courts 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 nonmovants 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 Natl Bank 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 clinics first issue to determine the summary-judgment grounds properly before the trial court.
B. The clinics objections to the lawyers affirmative defenses raised after the pleading deadline
The clinic objected that the lawyers affirmative defenses of (1) lack of knowledge and (2) privilege and justification were not raised until after the docket-control 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 courts action in considering the amended pleading. Goswami v. Metro. Sav. & Loan Assn, 751 S.W.2d 487, 490 (Tex. 1988). In its objection to the lawyers summary-judgment motion, the clinic did not argue or demonstrate surprise. Therefore, the trial courts overruling of the clinics objection established leave of court for the amended pleading and did not constitute error. Id.
C. The clinics special exceptions to the lawyers traditional summary-judgment motion
The clinic specially excepted to Randles hybrid motion because Randle failed to include specific citations to summary-judgment evidence supporting his traditional summary-judgment motion on the clinics claims of tortious interference and money had and received, as well as the lawyers affirmative defense of privilege and justification.
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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 clinics 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 summary-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).
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Therefore, we conclude that the trial court did not err in overruling the clinics special exceptions. We overrule the clinics first issue.
D. The lawyers hybrid motion
1. Tortious interference
We first examine the propriety of the trial courts summary judgment in Randles favor on the clinics tortious-interference claim, beginning with the lawyers no-evidence grounds.
Randles 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 plaintiffs 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, 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 Randles designation of expert witnesses filed in the clients 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 Randles litigation file, establish the lawyers knowledge that Cuba received medical treatment at the clinic. Further, the clinic cites to a statement in Randles affidavit that he would have requested records from the clinic had the case not settled so quickly. The clinics 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,
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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.”
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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 lawyers 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 lawyers 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 refd 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, Randles 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 lawyers affirmative defenses of privilege and justification and limitations as they pertain to tortious interference. See Tex. R. App. P. 47.1. Concluding there is no evidence raising a fact issue regarding the “intentional” element of the clinics cause of action for tortious interference with a contract, we affirm the trial courts summary judgment in Randles 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, 150 Tex. 581, 243 S.W.2d 686, 687 (1951). Thus, an essential element of the clinics claim is proving that some part of the clients 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 lawyers 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 Randles motion, the court overruled the special exception, and the clinic did not alternatively, or subsequently, address the merit of the motion 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 agreements 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 courts summary judgment in Randles favor on this claim.
3. Unjust enrichment
In the lawyers 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 partys 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 clinics favor. He stated that: (1) he never received a copy of Cubas prior attorneys 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.”
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). Randles 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 plaintiffs 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 refd 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 Randles motion as a traditional summary-judgment motion, Randles argument and evidence defeat the elements of unjust enrichment as a matter of law because, if the lawyers 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 courts summary judgment in Randles favor on the clinics unjust enrichment claim.
Our dissenting colleague would reverse the summary judgment on this claim because he concludes that Randles motion failed to adequately address the unjust-enrichment 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 clinics 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 clinics claim on which it could produce no evidence—breach. This is sufficient to satisfy no-evidence 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 clinics contract claim.
Regardless whether we construe Randles 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 clients 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 workers 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.” Randles 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.
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.
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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 clinics 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 Natl Bank, 315 S.W.3d at 508-09. Thus, the trial court erred in rendering summary judgment on the clinics third-party beneficiary of a contract claim.
We sustain the clinics second issue in part as to its third-party beneficiary of a contract claim, and overrule the remainder of the issue.
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Conclusion
We overrule the clinics first issue and sustain in part and overrule in part its second issue. We reverse the portion of the trial courts judgment rendering summary judgment in Randles favor on the clinics claim for breach of a third-party beneficiary contract. We affirm the remainder of the trial courts judgment as challenged on appeal. We remand the case to the trial court for further proceedings. Tex. R. App. P. 43.3.
CONCURRING AND DISSENTING OPINION
I join the courts opinion in its disposition of issue one. I also join the court in its affirmance in part of the lawyers summary judgment as to the clinics claim of tortious interference, and reversal in part of the lawyers summary judgment as to the clinics claims of breach of third-party beneficiary contract, and remand of the case to the trial court. However, I disagree with the courts disposition of the lawyers summary-judgment motion on the clinics money-had-and-received and unjust-enrichment claims.
The lawyer moved for no-evidence summary judgment on all the clinics claims: “In this No-Evidence Motion for Summary Judgment, Defendant contends that there is no evidence on each element of Plaintiffs tortious interference, third-party beneficiary claims, as well as Plaintiffs claims alleging money had and received and unjust enrichment, and each such claim is barred by the applicable statute of limitations.” 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.”); see Cmty. Health Sys. Profl Servs. Corp. v. Hansen, 525 S.W.3d 671, 695–96 (Tex. 2017); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310–11 (Tex. 2009).
This court, however, reaches the opposite conclusion and determines that the lawyer properly asserted a no-evidence motion based on the following language:
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. LArte de Mode, Inc. v. Neiman Marcus Group, 395 S.W.3d 291, 296 (Tex. App.—Dallas 2013, no pet.). It is undisputed that Defendant never made a claim for Plaintiffs medical charges, never received a settlement that included any amount for Plaintiffs charges, and therefore Defendant does not, and has never held money belonging to Plaintiff.
The court explains that the lawyer “identified the elements of the claim on which there was no evidence.” However, the lawyers summary-judgment motion never actually does this. The lawyer was clearly asserting traditional-summary-judgment grounds in the quoted paragraph—that he has never held any money belonging to the clinic—because he never made a claim that included the clinics medical charges and never received a settlement that included any amount for the clinics charges. Holding that the lawyer met his burden under Rule 166a(i), this court affirms the trial courts summary judgment in the lawyers favor on this claim because the clinic did not produce evidence raising a genuine issue of material fact in response. Tex. R. Civ. P. 166a(i).
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This court also affirms traditional summary judgment on the clinics unjust-enrichment claim when the lawyer stated no such specific ground for that claim. Rule 166a(c) requires that, and so does the supreme court. Tex. R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
“Construing” the lawyers various arguments as a traditional summary-judgment motion, the court determines that the lawyers lack of knowledge of his clients assignment of benefits disproves the clinics unjust-enrichment cause of action. On appeal, the lawyer states there was no unjust enrichment because the clients settlement amount was not increased because of the use of the clinics billing records or charges. However, the lawyer did not make this argument below and the trial court was limited to the grounds expressly presented in the motion. See Tex. R. Civ. P. 166a(c); Timpte Indus., 286 S.W.3d at 310 (“It is well settled that a trial court cannot grant a summary judgment motion on grounds not presented in the motion.”).
The lawyer made only the following statements about his unjust-enrichment claim:
• “In this No-Evidence Motion for Summary Judgment, Defendant contends that there is no evidence on each element of Plaintiffs tortious interference, third-party beneficiary claims, as well as Plaintiffs claims alleging money had and received and unjust enrichment, and each such claim is barred by the applicable statute of limitations.”
• “Defendant contends that the undisputed facts reveal that Plaintiff has no valid claim against Defendant because there is no evidence that Defendant was aware of the assignment of benefits․”
• “Plaintiff never asserted or notified Defendant, in any manner, at any time, about the assignment and Defendant does not have, never collected, never received, and never had possession of any money belonging to Plaintiff.”
The lawyer does argue (in a section entitled “Absent Knowledge of an Assignment of Benefits or a Letter of Protection Defendant Owed no Duty to Plaintiff”) that he had no knowledge of the assignment and therefore no duty to the clinic under the Texas Disciplinary Rules of Professional Conduct. However, this argument is not specific to any cause of action and the lawyer never explains how 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 assignment between the clinic and his client disproves the clinics claim for unjust enrichment, this court makes the argument for him. The court concludes the lawyer presented proof that he had no knowledge of the assignment and without knowledge of the assignment the lawyer proved that he did not obtain a benefit by “fraud, duress, or the taking of undue advantage.” The court expressly states that the lawyer could not have taken “undue advantage” of the clinic when the lawyer was unaware of any assignment in the clinics favor.
The clinics summary-judgment response acknowledged that the lawyers summary-judgment motion is rooted in his lack of knowledge of the assignment. However, the clinic argued more broadly that the lawyer knew of his clients treatment at the clinic and relied on the clinics medical records and treatment as part of his clients claim. The clinic also points out that the lawyer obtained a $60,000 personal-injury settlement for his client based in part on his clients need to pay medical expenses of $24,044.65, only $500 of which were ever paid to any of the medical providers. Thus, the question of unjust enrichment and undue advantage is raised with or without the lawyers knowledge of the assignment of benefits.
Summary judgment is an efficient means to resolve disputes and achieve finality. But this is not a case for such a final resolution. I would reverse the trial courts judgment on the clinics money-had-and-received, unjust-enrichment and breach of third-party-beneficiary-contract claims, affirm in part on the remaining issues as challenged on appeal, and remand the case to the trial court for further proceedings. Accordingly, I respectfully concur in part and dissent in part to this courts judgment.
FOOTNOTES
1
. The final judgment states that it grants the lawyers “Motion for Summary Judgment.” The order also states that the court heard and considered the lawyers “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. Dept 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 at 738. Therefore, we conclude that the “Motion for Summary Judgment” granted by the trial court was the lawyers 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).
3
. The clinic argues on appeal that it raised a “special exception to [the lawyers] 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.
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. On appeal, the clinic argues that the lawyer failed to address its arguments regarding the trial courts rulings on its special exceptions and objections to the lawyers 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 clinics appellate issues on the merits. See Tex. R. App. P. 38.1(i), 38.2(a)(2), 38.9.
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. 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 Systems v. Randalls 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 plaintiffs 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 plaintiffs interest in it. Allsup, 808 S.W.2d at 656. Accordingly, we read the clinics argument as addressing only the intent element—the element of the claim challenged by the lawyer on no-evidence grounds.
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 clients assignment of benefits to the clinic, and therefore had no obligation to the clinic as a third party. While the lawyers arguments are somewhat unclear, the duty he addresses is the duty an attorney owes to the attorneys client as well as to third parties under the Texas Disciplinary Rules of Professional Conduct. Tex. Disciplinary Rules Profl Conduct R. 1.14, reprinted in Tex. Govt Code, tit. 2 subtit. G, app A (“Safekeeping Property”). The lawyer cites to ethics opinions issued by the Professional Ethics 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 partys interest in a settlement. This argument is immaterial as the clinics 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 clinics live causes of action. Therefore, the lawyers argument does not defeat any element of the clinics remaining causes of action.
1
. The lawyer had alternate summary-judgment grounds to dispose of the money-had-and-received claim, which the court does not reach. None of those other grounds are viable.
Kevin Jewell, Justice
(Spain, J., concurring and dissenting).