law-restitution | money had and received |


08‑1081  
ANN CASSTEVENS v. DANIEL SMITH AND SHANNON SMITH; from Smith County; 6th district
(
06‑07‑00116‑CV, 269 SW3d 222, 10‑23‑08, pet denied June 2009)

See discussion Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 837-38 (Tex. App.--Dallas
2008, no pet.). Texas courts have allowed restitution for these types of claims in a variety of cases: by a
defrauded party against the party who committed the fraud, see Staats v. Miller, 150 Tex. 581, 583-85, 243
S.W.2d 686, 686-88 (1951); Wiseman v. Baylor, 69 Tex. 63, 64-66, 6 S.W. 743, 743-44 (1887); by a party
that made an overpayment, Benson v. Travelers Ins. Co., 464 S.W.2d 709, 710-13 (Tex. Civ. App.--Dallas
1971, no writ); and by a party that paid or credited money to the wrong person or account, see Amoco
Prod. Co. v. Smith, 946 S.W.2d 162, 163-65 (Tex. App.--El Paso 1997, no writ) (payment to wrong person);
Doss v. Homecomings Fin. Network, Inc., 210 S.W.3d 706, 710-11 (Tex. App.--Corpus Christi 2006, pet.
denied) (payment applied to wrong account); Lyman D. Robinson Family Ltd. P'ship v. McWilliams &
Thompson, P.L.L.C., 143 S.W.3d 518, 520 (Tex. App.--Dallas 2004, pet. denied) (earnest money released
to wrong client).

Conversely, some Texas courts have rejected a claim for restitution and held that money paid under a
unilateral mistake of fact cannot be recovered. See, e.g., Pac. Molasses Co. v. Graves, 451 S.W.2d 294,
298 (Tex. Civ. App.--San Antonio 1970, writ ref'd n.r.e.); Sellman v. Am. Nat'l Ins. Co., 281 S.W.2d 150, 154
(Tex. Civ. App.--Texarkana 1955, writ dism'd). And other courts have held that, as between two innocent
parties, the party that must suffer the loss is the one that mistakenly created the situation and was in the
best position to have avoided it. See Holden Bus. Forms Co. v. Columbia Med. Ctr. of Arlington Subsidiary,
L.P., 83 S.W.3d 274, 278 (Tex. App.--Fort Worth 2002, no pet.) (self-insured employer denied restitution of
insurance benefits paid to hospital before employer discovered claim not covered by plan); Lincoln Nat'l Life
Ins. Co. v. Rittman, 790 S.W.2d 791, 794 (Tex. App.--Houston [14th Dist.] 1990, no writ) (insurer denied
restitution of benefits paid to hospital after coverage terminated); Lincoln Nat'l Life Ins. Co. v. Brown Schs.,
Inc., 757 S.W.2d 411, 415 (Tex. App.--Houston [14th Dist.] 1988, no writ) (same).