Cardell Davis A/K/A Cordell Davis v. OneWest Bank N.A. F/K/A OneWest Bank FSB and Federal National Mortgage Association and Valarie Berry

COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00264-CV

CARDELL DAVIS A/K/A CORDELL APPELLANT DAVIS

V.

ONEWEST BANK N.A. F/K/A APPELLEES ONEWEST BANK FSB AND FEDERAL NATIONAL MORTGAGE ASSOCIATION AND VALARIE BERRY

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 017-262592-12

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MEMORANDUM OPINION1

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In a single issue in this dispute over compensation for improvements to real property, appellant Cardell Davis a/k/a Cordell Davis appeals the trial court’s summary judgment for appellees OneWest Bank N.A. f/k/a OneWest Bank FSB (OneWest) and Federal National Mortgage Association (Fannie Mae) on his unjust enrichment claim.2

In their summary judgment motion, appellees raised two grounds on the issue Davis appeals, under the heading, “Plaintiff’s claim for unjust enrichment fails as a matter of law because the Moving Defendants acted in accordance with the law”: (1) unjust enrichment is not an independent cause of action; and (2) appellees acted in accordance with law by foreclosing on the property. See Tex. R. Civ. P. 166a(b), (c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010) (stating that a defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim), cert. denied, 131 S. Ct. 1017 (2011).

In part of his sole issue, and relying on Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2007, pet. denied), Davis argues, “At the outset, [he] would show that he may bring a claim for unjust enrichment as an independent cause of action.” In Pepi, the First Court held that unjust enrichment is an independent cause of action. Id.

However, this court has held the opposite, stating, “Unjust enrichment, itself, is not an independent cause of action but rather ‘characterizes the result of a failure to make restitution of benefits either wrongfully or passively received under circumstances that give rise to an implied or quasi-contractual obligation to repay.’”3 Argyle ISD ex rel. Bd. of Trustees v. Wolf, 234 S.W.3d 229, 246 (Tex. App.—Fort Worth 2007, no pet.) (citations omitted); see also Hulen v. Hamilton, No. 02-06-00288-CV, 2008 WL 553812, at *4 (Tex. App.—Fort Worth Feb. 28, 2008, no pet.) (mem. op.) (stating same); Friberg-Cooper Water Supply Corp. v. Elledge, 197 S.W.3d 826, 832 (Tex. App.—Fort Worth 2006) (stating same), rev’d on limitations grounds, 240 S.W.3d 869, 869–71 (Tex. 2007); David Dittfurth, Restitution in Texas: Civil Liability for Unjust Enrichment, 54 S. Tex. L. Rev. 225, 238 (2012) (“Most of the Texas courts of appeals and federal courts that have considered the question under Texas law have rejected the existence of an independent cause of action for unjust enrichment.”). But cf. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 891 (Tex. 1998) (“We have recognized that, in some circumstances, a royalty owner has a cause of action against its lessee based on unjust enrichment, but only when the lessee profited at the royalty owner’s expense.”); Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41–42 (Tex. 1992) (discussing subcontractor’s inability to recover under quantum meruit and unjust enrichment theories); George P. Roach, Unjust Enrichment in Texas: Is it a Floor Wax or a Dessert Topping?, 65 Baylor L. Rev. 153, 203–40 (2013) (exploring “the ongoing dispute of whether unjust enrichment is a cause of action”).

We decline Davis’s invitation to reconsider our precedent, overrule this portion of his sole issue without reaching the rest of his arguments, and affirm the trial court’s judgment. See Tex. R. App. P. 47.1.

/s/ Bonnie Sudderth BONNIE SUDDERTH JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DELIVERED: April 9, 2015