In re Scott Erin McGarrey--Appeal from County Court at Law No 1 of Johnson County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-07-00280-CV

Case Date: 10/03/2007

Plaintiff: Ardis Kerr (a/k/a Audrey Kerr a/k/a A.J. Kerr) and Geraldine Cummings

Defendant: Kevin Mundie and Nicola Mundie--Appeal from 29th District Court of Palo Pinto County

Preview:Ardis Kerr (a/k/a Audrey Kerr a/k/a A.J. Kerr) and Geraldine Cummings v. Kevin Mundie and Nicola Mundie--Appeal from 29th District Court of Palo Pinto County
Opinion filed March 15, 2007 Opinion filed March 15, 2007 In The Eleventh Court of Appeals __________ No. 11-05-00118-CV __________ ARDIS KERR (A/K/A AAUDRY KERR@A/K/A AA. J. KERR@) AND GERALDINE CUMMINGS, Appellants V. KEVIN MUNDIE AND NICOLA MUNDIE, Appellees On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. C39597 MEMORANDUMOPINION

After conducting a bench trial over the course of three days, the trial court entered judgment against Ardis Kerr (a/k/a AAudry Kerr@ a/k/a AA. J. Kerr@) and Geraldine Cummings in the gross amount of $413,236.56 plus attorney=s fees and interest.[1] The trial court based its judgment in favor of Kevin Mundie and Nicola Mundie on multiple independent theories of recovery, including Amoney had and received,@ conversion, fraud, and a violation of the Texas Theft Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. '' 134.001-.005 (Vernon 2005). Appellees= cause of action for money had and received is the subject of this appeal.[2] The trial court granted a partial summary judgment in favor of appellees on this theory of recovery prior to conducting the bench trial. Appellants limit their contentions on appeal to only attacking the trial court=s partial summary judgment on this single cause of action in their sole issue on appeal. Since appellants have not challenged the other theories of recovery upon which the trial court based its judgment, we affirm. Background Facts

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The factual allegations lodged by the parties against each other are somewhat complicated and disturbing. They center on a relationship between appellant Ardis Kerr, a resident of Palo Pinto County, and appellee Nicola Mundie, a former resident of Singapore, that started over the Internet. There are claims of trickery and deceit by spouses against each other that involve large sums of money. We do not need to delve into these allegations, however, because of the procedural nature of this appeal. Analysis

When the trial court=s judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.CFort Worth 1994, writ denied); Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.CAustin 1982, no writ). As noted above, the trial court rendered judgment in favor of appellees on the theories of conversion, fraud, and a violation of the Texas Theft Liability Act in addition to the cause of action for money had and received. Appellants= failure to challenge these independent theories of recovery requires us to affirm the trial court=s judgment.[3] Appellants= sole issue on appeal is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE March 15, 2007 Panel consists of: Wright, C.J., McCall, J., and Strange, J.

[1]The judgment reflects that appellants were entitled to offsets of over $300,000 to be credited against the gross judgment amount of $413,236.56. [2]AMoney had and received@ is an equitable action that may be maintained to prevent unjust enrichment when one person obtains money, which in equity and good conscience belongs to another. J.C. Penney Co. v. Pitts, 139 S.W.3d 455, 457 n.4 (Tex. App.CCorpus Christi 2004, no pet.) (citing Staats v. Miller, 243 S.W.2d 686, 687 (Tex. 1951)). A cause of action for money had and received is not based on wrongdoing but, instead, Alooks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another.@ Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.CEl Paso 1997, no writ). In short, it is an equitable doctrine applied to prevent unjust enrichment. Hunt v. Baldwin, 68 S.W.3d 117, 132 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Phippen v. Deere & Co., 965 S.W.2d 713, 725 (Tex. App.CTexarkana 1998, no pet.). [3]Appellants= efforts to challenge the other theories of recovery would probably have been adversely affected by the absence of a request for the trial court to prepare findings of fact and conclusions of law. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992) (in a nonjury trial, where no findings of fact or conclusions of law are filed or requested, it is implied that the trial court made all necessary findings to support its judgment). We note in this regard that appellants were pro se at the time that the trial court entered its final judgment.

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