IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

SOUTH CENTRAL HOUSTON §

ACTION COUNCIL, D/B/A §
CENTRAL CARE INTEGRATED §
HEALTH SERVICES §
APPELLANT §
§ CASE NO. 4:20-cv--02194
v. §
§
SOUTH POST OAK BAPTIST §
CHURCH, INC. D/B/A THE §
FOUNTAIN OF PRAISE §
APPELLEE §

On appeal from the U.S. Bankruptcy Court for the Southern District of Texas,
Houston Division, Case No. 19-30371, Adversary No. 19-03670, The Honorable
Jeffrey P. Norman, Presiding

APPELLANT’S OPENING BRIEF

Susan J. Clouthier
Clouthier Law, PLLC
10210 Grogans Mill Rd., Suite 330
The Woodlands, Texas 77380
Tel: (832) 849-5410
Fax: (832) 514-6215
susan@clouthierlaw.com
Attorney for Appellant
South Central Houston Action
Council, d/b/a Central Care
Integrated Health Services

ORAL ARGUMENT REQUESTED

i
 CORPORATE DISCLOSURE STATEMENT

In compliance with the requirements of Federal Rules of Appellate

Procedure 26.1, South Central Houston Action Council, d/b/a Central Care

Integrated Health Services states that it is a non-profit organization which does not

have a parent company, and that there are no publicly held companies that own

10% or more of the stock of South Central Houston Action Council, d/b/a Central

Care Integrated Health Services.

September 30, 2020

/s/ Susan J. Clouthier

Susan J. Clouthier

ii
 TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT....................................................ii

TABLE OF AUTHORITIES.................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT...........................................1
STATEMENT OF THE CASE..............................................................................1
I. Nature of the Case......................................................................................1
II. Procedural History.....................................................................................2
STATEMENT OF FACTS.....................................................................................4
SUMMARY OF ARGUMENT..............................................................................8
APPLICABLE STANDARD OF APPELLATE REVIEW...............................12
ARGUMENT.........................................................................................................13
I. The Bankruptcy Court erred when it sua sponte granted summary
judgment on Central Care’s breach of contract claim based on failure of
performance........................................................................................................13
A. The summary-judgment burden never shifted to Central Care on the
contractual element of performance..............................................................13
B. The Bankruptcy Court deprived Central Care of notice and the
opportunity to respond with summary judgment evidence on the element
of performance in its breach of contract claim............................................17
C. The Bankruptcy Court’s sua sponte granting of summary judgment
on the element of performance does not constitute harmless error...........20
III. The Bankruptcy Court erred when it denied Central Care’s Motion
for New Trial following its sua sponte Order granting summary judgment
because its ruling is based on a clearly erroneous view of the evidence and
the law..................................................................................................................23
IV. The Bankruptcy Court erred when it granted summary judgment on
Central Care’s breach of contract claim because Central Care presented a
genuine issue of material fact as to damages...................................................26
IV. The Bankruptcy Court erred when it denied Central Care’s Motion
for New Trial because it made a clearly erroneous assessment of the
evidence...............................................................................................................29

iii
 V. The Bankruptcy Court erred when it granted summary judgment in
favor of FOP on Central Care’s unjust enrichment claim because Central
Care raised a genuine issue of material fact in support of this equitable
claim.....................................................................................................................31
VI. The Bankruptcy Court erred when it denied Central Care’s Motion
for New Trial regarding the unjust enrichment claim because its ruling is
based on a clearly erroneous assessment of the evidence...............................33
CONCLUSION......................................................................................................34
CERTIFICATE OF SERVICE............................................................................35

iv
 TABLE OF AUTHORITIES
Cases

Atkins v. Salazar,
677 F.3d 667 (5th Cir. 2011)...........................................................................13, 20

Austin v. Kroger Texas, L.P.,

864 F.3d 326 (5th Cir. 2017).....................................................................13, 15, 16

Bransom v. Standard Hardware, Inc.,

874 S.W.2d 919 (Tex. App.—Fort Worth 1994, writ denied)..............................31

Celotex Corp. v. Catrett,

477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)..................................Passim

Crawford v. Formosa Plastics Corp., La.,

234 F.3d 899 (5th Cir. 2000).........................................................................Passim

Eun Bok Lee v. Ho Chang Lee,

411 S.W.3d 95 (Tex. App.—Houston [1st Dist.] 2013, no pet.)..........................31

Fontenot v. Upjohn Co.,

780 F.2d 1190 (5th Cir. 1986)...............................................................................15

Great–West Life & Annuity Ins. Co. v. Knudson,

534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).........................................31

In re Killebrew,
888 F.2d 1516 (5th Cir. 1989)...............................................................................12

Jones v. Family Dollar Stores of Louisiana, Inc.,

746 Fed. Appx. 348 (5th Cir. 2018)................................................................17, 19

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,

28 F.3d 1388 (5th Cir. 1994).................................................................................18

Luig v. North Bay Enterprises, Inc.,

817 F.3d 901 (5th Cir. 2016).................................................................................18

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)........................................................................................29, 30

v
M/V Concert Express,
225 F.3d 587 (5th Cir. 2000).................................................................................20

Mustang Pipeline Co. v. [D]river Pipeline Co., [Inc.,

134 S.W.3d 195 (Tex. 2004).....................................................................16, 22, 29

NL Indus., Inc. v. GHR Energy Corp.,

940 F.2d 957 (5th Cir.1991)..................................................................................18

Powell v. United States,

849 F.2d 1576 (5th Cir. 1988)...................................................................13, 18, 20

Russ v. International Paper Co.,

943 F.2d 589 (5th Cir. 1991)...........................................................................15, 26

Smith Int’l, Inc. v. Egle Group, LLC,

490 F.3d 380 (5th Cir. 2007).................................................................................14

Templet v. HydroChem Inc.,

367 F.3d 473 (5th Cir. 2004).................................................................................25

Thomas v. Barton Lodge II, Ltd.,

174 F.3d 636 (5th Cir. 1999).................................................................................15

Washington v. Resolution Trust Corp.,

68 F.3d 935 (5th Cir. 1995).......................................................................18, 19, 20

Statutes

11 U.S.C. § 101.........................................................................................................3

28 U.S.C. § 158(a)...................................................................................................12

28 U.S.C. § 158(c)(2)..............................................................................................12

Rules

Fed. R. App. P. 26.1.................................................................................................2

Fed. R. App. P. 32(a)(7)(C).....................................................................................36

vi
Fed. R. Civ. P. 56(1), (3).........................................................................................17

Fed. R. Civ. P. 56(a)................................................................................................12

Fed. R. Civ. P. 56(f)............................................................................................9, 18

Other Authorities

Restatement (second) of Contracts § 241 (1981)....................................................22

vii
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral arguments will aide in the Court’s decision

because this case deals with issues that are unique.

STATEMENT OF THE CASE

I. Nature of the Case

South Central Houston Action Council, Inc. d/b/a Central Care Integrated

Health Services (“Central Care” or “Appellant”),a federally qualified healthcare

center organized in the State of Texas, operated four healthcare clinics when it was

first approached by South Post Oak Baptist Church, Inc. d/b/a The Fountain of

Praise (“FOP” or “Appellee”) in 2009. (Appellant’s Excerpts of Record (“AA”),

doc. 1-25, at 2, doc. 59, at 78-79.) Each Central Care clinic focused on

underserved, uninsured, and indigent persons with chronic care and primary care

health needs in the Houston area. (AA, doc. 59, at 2.) FOP desired to open a clinic

on property that it owned off South Main Street and Hillcroft, and Central Care

agreed to use its status and experience as a federally qualified health center to help

establish, build, and operate a clinic on FOP’s property. (AA, doc. 59, at 79.)

Central Care obtained funding for the buildout through a grant from the City of

Houston as well as its own funding. (AA, doc. 59, at 81.) Central Care and FOP

worked together for several years to finally launch the clinic in April, 2013 and
repeatedly presented themselves as partners to the community. (AA, doc. 59, at 79-

80.)

As soon as the clinic became operational, Central Care and FOP began to

disagree over lease provisions and the parties’ compliance with lease terms. (AA,

doc. 59, at 37-38.) FOP failed to provide an operational mailing address which was

essential for Central Care to bill Medicare/Medicaid. (AA, doc. 59, at 57.) FOP

also failed to repair the leaking roof, despite its contractual obligation to do so.

(AA, doc. 59, at 24-25.) Central Care suffered damages from FOP’s failure to

repair the roof and failure to provide an accurate mailing address. (AA, doc. 59, at

34-55, 61.) The Bankruptcy Court dismissed Central Care’s claims in their

entirety, although it correctly determined that:

Central Care alleged facts to support its claim of breach of contract by

alleging Fountain of Praise failed to make obligated repairs and failed
to timely correct a mailing address.

(AA, doc. 61, at 6.) Central Care appeals and asks that the Bankruptcy Court’s

orders granting summary judgment and denying rehearing be reversed as to its

claims against FOP for breach of contract and unjust enrichment.

II. Procedural History

On December 17, 2018, Central Care filed Tenant’s Sworn Complaint for

Writ or Re-Entry and Affidavit Regarding Illegal Lockout in the Justice Court of

Precinct 7, Place 2 of Harris County, Texas, Case No. 187200544277. (AA, doc.

2
17, at 3.) The next day, FOP filed an Answer, Request for Hearing, and Petition for

Eviction. (AA, doc. 17, at 3.)

On January 28, 2019, Central Care filed a petition under chapter 11 of title

11, 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”) in the United States

Bankruptcy Court for the Southern District of Texas (“Bankruptcy Court”), Case

No. 4:19-bk-30371. Central Care filed this lawsuit against FOP, its Chief

Executive Officer George Anderson, and Avenue 360 on April 15, 2019 in the

District Court of Harris County Texas, 157th Judicial District, Cause No. 2019-

26664, for tortious interference with existing contract, breach of contract,

conspiracy, and unjust enrichment related to the parties’ ongoing disagreement

over provisions and compliance with the terms of the Lease. (AA, doc. 1-2.)

Defendants FOP and Anderson removed the lawsuit into the Bankruptcy Court by

filing an adversary proceeding, Case No. 4:19-ap-3670, on November 12, 2019.

(AA, doc. 1.)

Defendant Houston Area Community Services, Inc. d/b/a Avenue 360

Health and Wellness filed a Motion to Dismiss, which was granted on March 26,

2020, leaving Defendants FOP and Anderson in the adversary proceeding. (AA,

doc. 40.) Defendants FOP and Anderson filed an Amended Answer and

Counterclaim for breach of contract on April 30, 2020. (AA, doc. 45.) Defendants

FOP and Anderson filed a Motion for Summary Judgment (“Motion”) on May 8,

3
2020. (AA, doc. 46.) Central Care filed its Objections, Opposition, and Response

to the Motion (“Response”) on June 4, 2020. (AA, doc. 59.) The Bankruptcy Court

granted the Motion, dismissing all of Central Care’s claims against FOP and

Anderson on May 12, 2020. (AA, doc. 61.)

Central Care filed a timely Notice of Appeal on June 19, 2020. (AA, doc.

63.) Concurrently, Central Care also filed a Request for Rehearing and Motion for

New Trial (“Motion for New Trial”) on June 19, 2020. (AA, doc. 65.) Defendants

FOP and Anderson filed a Response to Central Care’s Motion for New Trial on

June 23, 2020. (AA, doc. 68.) The Bankruptcy Court denied the Motion for New

Trial on June 28, 2020. (AA, doc. 73.) Central Care then filed a First Amended

Notice of Appeal on July 28, 2020. (AA, doc. 82.) Accordingly, this appeal is

before the U.S. District Court for the Southern District of Texas.

STATEMENT OF FACTS

Central Care began operating in the Houston area in 1994 as part of the

healthcare system of South Central Houston Action Council. (AA, doc. 59, at 78.)

Central Care was a federally qualified health center (“FQHC”) whose mission was

fighting health disparities in the African American community. (AA, doc. 59, at

78-79.)

In 2009, FOP approached Central Care, suggesting a partnership to provide

healthcare services to underserved members of the church and community in the

4
Hiram Clarke area of Houston. (AA, doc. 59, at 79.) In 2009, Central Care was

operating four healthcare clinics in the Houston area. (AA, doc. 59, at 78.) FOP

desired to start a FQHC on property that it owned off South Main Street and

Hillcroft at 14087 South Main Street (the “Property”), and Central Care agreed to

use its status and experience as a FQHC to help establish and to operate a FQHC

on FOP’s Property. (AA, doc. 59, at 79.) Toward this end, in 2013, Central Care

obtained the designation of Health Professional Shortage Area for the Hiram

Clarke area. (AA, doc. 59, at 79.) This designation was necessary to show that it

was a medically underserved area, as no funding would be received otherwise.

(AA, doc. 59, at 79.)

At FOP’s request, Central Care completed an application for a Community

Development Block Grant (“CDBG” or “Grant”). (AA, doc. 59, at 80.) In August

of 2013, the City of Houston notified Central Care and FOP that they must enter a

long-term lease to support the CDBG because FOP owned the Property. (AA, doc.

59, at 80.) On September 5, 2013, Central Care and FOP executed a commercial

lease (the “Lease”) for the Property. (AA, doc. 17, at 2.) The term of the Lease was

for 300 months beginning at an annual rate of $18 per square foot to be paid by

Central Care in 12 monthly installments. (AA, doc. 17, at 2.) The Lease states that

FOP is responsible for repair and maintenance of “Foundation, exterior walls, roof,

and other structural components.” (AA, doc. 46, at 8.)

5
 On September 9, 2013, Central Care and FOP executed an amendment to the

Lease (“Amendment”). (AA, doc. 17, at 2.) The Amendment extends the

Commencement Date of the Lease to the date construction was complete. (AA,

doc. 46-1, at 18.) The Lease term would begin “when the clinic opened and ramped

up operations.” (AA, doc. 59, at 81.) The Amendment also provided that FOP

would subsidize a portion of the rent and that for the first five years of the Lease,

rent would be $6 per rentable square foot per year, or $6,500 per month. (AA, doc.

46-1, at 18; doc 59, at 81.) The Lease was for 13,000 square feet, but FOP

overbilled Central Care for over 17,000 square feet, or $8,527 per month. (AA,

doc. 46-1, at 2; doc. 46-9, at 1.) The Lease expressly provides that rent will not be

adjusted for additional rentable area beyond 13,000 square feet. (AA, doc. 46-1, at

2.) The lease term was for “…(60) months with option for renewable (5) year

terms up to (25) years.” (AA, doc. 46-1, at 18.)

In December of 2013, Central Care obtained the CDBG for $1.1 million to

construct and buildout a health center (“Hillcroft Center”) on the Property that

Central Care would operate. (AA, doc. 59, at 81.) Central Care entered an

agreement dated December 12, 2013 with the City of Houston governing its

obligations as recipient of the $1.1 million Grant. (AA, doc. 46-11.) The Grant

contained a five-year restricted use period required to forgive its repayment. (AA,

doc. 46-11, at 4). Because FOP replaced Central Care, the Grant recipient, with

6
Avenue 360 as the provider of medical services one year before the restricted use

period expired, Central Care became liable to replay the $1.1 million Grant to the

City of Houston. (AA, doc. 46-11, at 4, 8, 16.)

Central Care invested approximately $150,000 of its own funds for

construction. (AA, doc. 59, at 81.) Construction began in early 2014. (AA, doc. 59,

at 81.) Thereafter, the Hillcroft Center had a ribbon-cutting celebration on March

13, 2015. (AA, doc. 17, at 2.) The City of Houston issued a Certificate of

Occupancy to Central Care for the “Health Clinic/Fitness Suite Buildout” on April

17, 2015. (AA, doc. 17, at 4.) On the same day, Central Care became award of a

leak in the immunization room and notified FOP of the problem. (AA, doc. 59, at

37-38.) The roof leaks persisted and interfered with Central Care’s business

throughout the duration of the Lease. (AA, doc. 59, at 34-55.)

The address of the Hillcroft Center provided to Central Care in the Lease

was nonexistent with the United States Post Office. (AA, doc. 59, at 57.) As a

result, Central Care was unable to bill for Medicare/Medicaid services for

approximately six months from the day it opened for business in April of 2015

through September of 2015. (AA, doc. 59, at 61.) On July 1, 2015, Central Care

notified FOP that the Post Office said the address needs to be registered by the

Property owners. (AA, doc. 59, at 57.)

7
 On September 20, 2017, Avenue 360 applied for a Health Resources and

Service Administration grant which had previously been received by Central Care.

(AA, doc. 17, at 2.) In December of 2017, the Health Resources and Service

Administration awarded the grant to Avenue 360, and Central Care lost its source

of federal funding. (AA, doc. 17, at 2.) Then, in November,2018, FOP unilaterally

increased the rent to $25,000 per month. (AA, doc. 46-7, at 1.) On November 8,

2018, Central Care sent a letter to FOP concerning a notice of duty to repair under

the Lease. (AA, doc. 59, at 24-25.) On November 19, 2018, Avenue 360 and FOP

enter into a lease agreement concerning the Hillcroft Center. (AA, doc. 17, at 2.)

On or about November 29, 2018, FOP sent Central Care a Notice of Termination

of Lease and Demand to Vacate the Premises regarding Central Care’s Lease of the

Hillcroft Center. The instant suit was filed by Central Care as a result of these

actions.

SUMMARY OF ARGUMENT

The Bankruptcy Court erred when it sua sponte granted summary judgment

on Central Care’s breach of contract claim based on failure of performance. The

summary judgment burden did not shift to Central Care on this element, as FOP’s

Motion only challenged the contractual elements of breach and damages. The

nonmovant must respond to a summary judgment issue only after the movant

meets its burden, which did not occur as to Central Care’s performance.

8
Consequently, the summary-judgment burden never shifted to Central Care to

present specific facts creating a genuine issue of material fact on performance.

Secondly, when the Bankruptcy Court issued its sua sponte ruling on

performance, it impermissibly deprived Central Care of notice and the opportunity

to respond with summary judgment evidence on the element of performance.

Federal Rule of Civil Procedure 56(f) allows a court to sua sponte enter summary

judgment only “after giving notice and a reasonable time to respond,” neither of

which occurred in this case.

Moreover, the Bankruptcy Court’s sua sponte granting of summary

judgment on the contractual element of performance is not harmless error. Central

Care has not admitted that it has no additional evidence. In addition, Central Care

was not given a chance to show the Bankruptcy Court that FOP’s breaches were

material, potentially discharging Central Care from its duties under the Lease.

Accordingly, the dismissal of its breach of contract does not constitute harmless

error because Central Care was not given a chance to demonstrate a genuine issue

of material fact regarding its performance under the Lease.

Furthermore, the Bankruptcy Court erred and abused its discretion when it

denied Central Care’s Motion for New Trial following its sua sponte Order

granting Summary Judgment because its ruling is based on a clearly erroneous

view of the evidence and the law. Rather than drawing inferences in favor of the

9
nonmovant, Central Care, the Bankruptcy Court consistently adopted FOP’s

version of disputed facts and drew reasonable inferences in the movant’s favor.

The Bankruptcy Court also erred in its application of the summary judgment

standard, advising that Central Care was compelled to address performance

because the element was referenced in FOP’s Motion.

Additionally, the Bankruptcy Court erred when it granted summary

judgment on Central Care’s breach of contract claim because Central Care

presented a genuine issue of material fact regarding damages. The Bankruptcy

Court ruled otherwise, turning a blind eye to Central Care’s summary judgment

evidence of damages.

Similarly, the Bankruptcy Court erred and abused its discretion in denying

Central Care’s Motion for New Trial because it made a clearly erroneous

assessment of the evidence, overlooking Central Care’s genuine issues of material

fact as to damages under the Lease. Central Care appropriately responded to FOP’s

Motion not by focusing on performance or materiality of FOP’s breaches, but by

raising genuine issues of material fact regarding the elements raised by the Motion:

breach and damages. In response to a summary judgment motion, a plaintiff’s

specific facts raised by evidence are to be taken as true, but in this case the

Bankruptcy Court wholly disregarded Central Care’s evidence of damages.

10
 The Bankruptcy Court also erred when it granted summary judgment in

favor of FOP on Central Care’s unjust enrichment claim because Central Care

raised a genuine issue of material fact in support of its equitable claim. Central

Care raised a fact issue regarding its equitable interest in the Property,

demonstrating that it invested approximately $150,000 of its own funds for

construction of the Hillcroft Center, in addition to obtaining the $1.1 million grant

from the City of Houston. Under the agreement between Central Care and the City

of Houston, Central Care incurred potential liability to repay the grant when it was

replaced as the provider within a restricted-use period, the first five years of

operation. FOP benefits from the construction improvements and by leasing the

Property to the Avenue 360, the new operator of the Hillcroft Center.

Consequently, the Bankruptcy Court erred when it dismissed Central Care’s unjust

enrichment claim.

Finally, the Bankruptcy Court erred when it denied Central Care’s Motion

for New Trial regarding the unjust enrichment claim because its ruling is based on

a clearly erroneous assessment of the evidence. The Bankruptcy Court failed to

acknowledge that Central Care invested its own money into the construction

project, in addition to obtaining the City of Houston grant. Again, it did not view

the summary judgment evidence in the light most favorable to the nonmovant.

Central Care would experience an unfair outcome if the Bankruptcy Court’s

11
decision is not overturned here. The Bankruptcy Court abused its discretion in

denying Central Care’s Motion for New Trial. Based on the evidence and the law,

Central Care’s breach of contract and unjust enrichment claims should be

permitted to proceed against FOP.

12
 APPLICABLE STANDARD OF APPELLATE REVIEW

A district court has jurisdiction to decide an appeal from a bankruptcy

court's final judgment or order. See 28 U.S.C. § 158(a). This appeal from a

bankruptcy court to a district court is “taken in the same manner as appeals in civil

proceedings generally are taken to the courts of appeals from the district courts[.]”

28 U.S.C. § 158(c)(2). Thus, this Court applies the same standard of review that a

circuit court would employ. In re Killebrew, 888 F.2d 1516, 1519 (5th Cir. 1989).

Specifically, this Court reviews de novo the Bankruptcy Court's grant of summary

judgment, applying the same standard as the Bankruptcy Court. Crawford v.

Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).

13
 “A party may move for summary judgment, identifying each claim or

defense – or the part of each claim or defense – on which summary judgment is

sought.” FED. R. CIV. P. 56(a). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Id. The movant bears the initial burden to

inform the court of the basis of its motion and identify areas essential to the

nonmovant’s claim in which there is an “absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 2553, 91

L.Ed.2d 265 (1986)). Once the movant meets its burden, to avoid summary

judgment, the nonmovant must go beyond the pleadings and direct the court’s

attention to evidence in the record sufficient to establish a genuine issue for trial.

Celotex, 477 U.S. at 324. All evidence must be viewed in the light most favorable

to the nonmoving party, and all reasonable inferences must be drawn in that party’s

favor. Crawford, 234 F.3d at 902.

This Court reviews the Bankruptcy Court’s denial of a motion for

reconsideration for an abuse of discretion. Austin v. Kroger Texas, L.P., 864 F.3d

326, 329 (5th Cir. 2017). “A trial court abuses its discretion when its ruling is

based on an erroneous view of the law or a clearly erroneous assessment of the

evidence.” Id.

14
 Finally, when a court enters summary judgment sua sponte without giving

notice to the parties, the decision is reviewed for harmless error. Powell v. United

States, 849 F.2d 1576, 1580 (5th Cir. 1988); Atkins v. Salazar, 677 F.3d 667, 678

(5th Cir. 2011).

ARGUMENT

I. The Bankruptcy Court erred when it sua sponte granted summary

judgment on Central Care’s breach of contract claim based on failure of
performance.

A. The summary-judgment burden never shifted to Central Care on the

contractual element of performance.

Because the summary-judgment burden never shifted to Central Care on the

contractual element of performance, the Bankruptcy Court erred in granting FOP

summary judgment based on this element. Under Texas law, a plaintiff must prove

the following elements to succeed on breach of contract: (1) the existence of a

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach

of the contract by the defendant; and (4) damages sustained by the plaintiff as a

result of the breach.” Smith Int’l, Inc. v. Egle Group, LLC, 490 F.3d 380, 387 (5th

Cir. 2007). FOP’s motion states, as the grounds on which it challenges Central

Care’s breach of contract claim:

Fountain of Praise did not breach the lease by refusing to repair the
roof because Central Care was obligated to make such repairs;

In any event, Central Care cannot show that it was damaged as a result
of Fountain of Praises’ refusal to repair the roof; and
15
 Central Care cannot show that Fountain of Praise breached the Lease
by not correcting the mailing address because there is no provision in
the Lease imposing any such obligation.

(AA, doc. 46, at 5-7.) As to Central Care’s breach of contract claim, FOP conceded

that there was a valid contract and did not challenge the element of Plaintiff’s

performance, moving for summary judgment solely on the elements of breach and

roof-related damages. (AA, doc. 46, at 5-7.) Accordingly, Central Care presented

summary judgment evidence regarding breach and roof-related damages to support

its breach of contract claim. (AA, doc. 59, at 4-9.)

However, the summary-judgment burden never shifted to Central Care on

the contractual element of performance. See Celotex, 477 U.S. at 322-25; see also

Austin v. Kroger Texas, L.P., 864 F.3d 326, 335 (5th Cir. 2017).

Simply filing a summary judgment motion does not immediately

compel the party opposing the motion to come forward with evidence
demonstrating material issues of fact as to every element of its case.
Russ v. International Paper Co., 943 F.2d 589, 591 (5th Cir. 1991). Before the

nonmovant is required to produce evidence opposing a motion for summary

judgment, the movant must first satisfy its obligation or demonstrate that there are

no factual issues warranting trial. Celotex, 477 U.S. at 323. When the movant does

not bear the burden of proof, he should be able to obtain summary judgment

“simply by disproving the existence of any essential element of the opposing

16
party’s claim or affirmative defense.” Fontenot v. Upjohn Co., 780 F.2d 1190 (5th

Cir. 1986) (emphasis added).

Of course, a party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its
motion, and identifying those portions of the ‘pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a
genuine issue of material fact.

Celotex, 477 U.S. at 323. This initial burden remains with the moving party even

when the issue involved is one on which the nonmovant will bear the burden of

proof at trial. Russ, 943 F.2d at 592. The nonmovant must respond only after the

movant meets its initial burden. Celotex, 477 U.S. at 325; see also Thomas v.

Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (“When a moving party

alleges that there is an absence of evidence necessary to prove a specific element

of a case, the nonmoving party bears the burden of presenting evidence that

provides a genuine issue for trial.”). Because FOP’s Motion challenged the

elements of breach and roof-related damages,1 the burden shifted to Central Care to

establish a genuine issue for trial on these two elements but not on the element of

performance. See Celotex, 477 U.S. at 322-25; see Austin, 864 F.3d at 335.

1
Although FOP’s Motion does contend that Central Care “was never current on its
obligation to pay rent,” noting that FOP prevailed on “eviction proceedings (and a second, de
novo trial in county court) which concluded that Central Care was not current on their payments
on the Lease as of the date of the termination of the Lease,” this was contained in the
“Background” section and not referenced whatsoever in “Argument and Authorities” section of
FOP’s Motion. (AA, doc. 46, at 2-15.)
17
 Accordingly, the Bankruptcy Court erred in dismissing Central Care’s

breach of contract claim based on the performance element. The Court’s Order

granting FOP’s Motion states:

Central Care alleged facts to support its claim of breach of contract by

alleging Fountain of Praise failed to make obligated repairs and failed
to timely correct a mailing address. However, Central Care’s response
did not refute claims that Central Care had failed to timely tender rent
payments. When one party to a contract commits a material breach of
that contract, the other party is excused from performance. Mustang
Pipeline Co. v. [D]river Pipeline Co., [Inc.], 134 S.W.3d 195 (Tex.
2004). Moreover, Central Care failed to produce any evidence in
response to written discovery requests to support its claim that Central
Care was damaged as a result of any breach. Therefore, the Court
concludes that Central Care breached the [L]ease by failing to pay the
rental obligation.

(AA, doc. 61, at 6.)

Because FOP’s Motion does not challenge the contractual element of

performance, the summary-judgment burden never shifted to Central Care to raise

specific facts creating a genuine issue of material fact on performance, and the

Bankruptcy Court erred in dismissing Central Care’s breach of contract claim on

that basis. (AA, doc. 46.) As such, the portion of the order dismissing the breach of

contract claim should be reversed and remanded for trial. (AA, doc. 61, at 6.)

B. The Bankruptcy Court deprived Central Care of notice and the

opportunity to respond with summary judgment evidence on the
element of performance in its breach of contract claim.

18
 The Bankruptcy Court unfairly surprised Central Care by dismissing its

breach of contract claim based on performance. Central Care was never put on

notice of the need to introduce evidence of the contractual element of performance

to avoid having its breach of contract claim dismissed. When the Bankruptcy Court

sua sponte granted FOP summary judgment based on Central Care’s performance,

an element not raised in FOP’s Motion, it denied Central Care notice and the

opportunity to respond and present evidence. See Jones v. Family Dollar Stores of

Louisiana, Inc., 746 Fed. Appx. 348, 351-52 (5th Cir. 2018). A court may grant

summary judgment for a nonmovant “so long as the losing party was on notice that

she had to come forward with all of her evidence.” Celotex, 477 U.S. at 326; see

FED. R. CIV. P. 56(1), (3).

Federal Rule of Civil Procedure 56(f) allows the court, “[a]fter giving notice

and a reasonable time to respond,” to either “grant summary judgment for a

nonmovant” or to “grant the motion on grounds not raised by a party.” FED. R.

CIV. P. 56(f). A district court may sua sponte enter summary judgment “only if the

losing party is on notice and has the opportunity to come forward with all its

evidence.” Luig v. North Bay Enterprises, Inc., 817 F.3d 901, 905 (5th Cir. 2016).

Since a summary judgment forecloses any future litigation of a case

the district court must give proper notice to insure that the nonmoving
party had the opportunity to make every possible legal and factual
argument.

19
Powell, 849 F.2d at 1579. Any reasonable doubt about whether or not the district

court gave proper notice must be resolved in favor of the losing party. See NL

Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 965 (5th Cir.1991). “[W]e have

vacated summary judgments and remanded for further proceedings where the

district court provided no notice prior to granting summary judgment sua sponte,

even where ‘summary judgment may have been proper on the merits.’”

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 28

F.3d 1388, 1398 (5th Cir. 1994).

20
 Notice that a particular element of a cause of action is being challenged with

summary judgment does not put a party on notice that every element is being

challenged. See Washington v. Resolution Trust Corp., 68 F.3d 935, 939 (5th Cir.

1995). In Washington, the Fifth Circuit held that it was an abuse of discretion for

the district court to enter summary judgment on plaintiff’s breach and causation

elements when the motion focused solely on the element of duty. Id. at 940.

However, when a motion for summary judgment lists each element of all the

claims, indicating that a plaintiff cannot establish any of them, the Fifth Circuit has

found that a plaintiff has notice to present the requisite evidence for each element

of their claims. Jones, 746 Fed. Appx. at 352. In this case, FOP’s Motion did not

challenge all elements of Central Care’s breach of contract claim. The Bankruptcy

Court did not afford Central Care notice or an opportunity to respond to potential

dismissal based on the performance element of its breach of contract claim.

Central Care did not have notice or the opportunity to present its evidence on

the performance element before the Bankruptcy Court granted FOP summary

judgment on this basis. The Bankruptcy Court erred when it dismissed Central

Care’s breach of contract claim based on its sua sponte conclusion that “Central

Care breached the [L]ease by failing to pay the rental obligation.” (AA, doc. 61, at

6.) FOP’s Motion did not attack the contractual element of performance. (AA, doc.

46.) Instead, FOP moved for dismissal of Central Care’s breach of contract claim

21
on the grounds that FOP did not breach the Lease and Central Care cannot show

roof-related damages. However, the Bankruptcy Court did not rule on these

grounds, instead excusing FOP’s breaches and granting FOP’s Motion for

Summary Judgment because Central Care did not refute claims that it failed to

timely tender rent payments. (AA, doc. 61, at 6.) The Bankruptcy Court’s sua

sponte summary judgment based on the contractual element of performance was

improper insofar as it lacked notice or afforded Central Care an opportunity to

respond and present its evidence on performance. Therefore, the Order dismissing

the breach of contract claim should be reversed and remanded for trial. (AA, doc.

61, at 6.)

C. The Bankruptcy Court’s sua sponte granting of summary judgment

on the element of performance does not constitute harmless error.

Although appellate courts strictly enforce the notice requirement, when a

court enters summary judgment sua sponte without giving notice to the parties, the

decision is reviewed for harmless error. Powell, 849 F.2d at 1580; Atkins, 677 F.3d

at 678 The question for this Court is whether the sua sponte summary judgment

ruling on the element of performance without notice constituted harmless error.

Error in notice is considered harmless if the nonmoving party admits that he

has no additional evidence anyway or if the appellate court evaluates all of the

nonmoving party’s additional evidence and finds no genuine issue of material fact.

Powell, 849 F.2d at 1582 (reversing summary judgment when harm was found
22
because party had no opportunity to submit summary judgment evidence to support

his contention about a genuine issue of material fact); see also Mannesman

Demag. Corp. v. M/V Concert Express, 225 F.3d 587 (5th Cir. 2000) (reversing

summary judgment when harm was found because party had a potentially valid

defense that it was not on notice to raise); see also Washington, 68 F.3d at 939

(reversing summary judgment when harm was found because the court did not

allow party to supplement his summary judgment record prior to ruling on

elements not briefed).

In this case, Central Care has not admitted that it has no additional evidence.

Rather, Central Care filed a Motion for New Trial and directed the Bankruptcy

Court to an affidavit of its former CEO, Marcus Roland, whereby he stated that

FOP agreed rent payments would not begin at the start of the Lease term “because

we knew it would take time for the center to operate with a profit.” (AA, doc. 59,

at 81.) Neither FOP nor Central Care briefed the issue of performance. The

dismissal of Central Care’s breach of contract claim was not harmless error, as

Central Care was not given the opportunity to demonstrate a genuine issue of

material fact regarding its performance under the Lease.

23
 Furthermore, Central Care was not given an opportunity to show the

Bankruptcy Court that FOP’s breaches were material. Although the parties did not

brief the issue of “material breach” or performance, the summary judgment

evidence raises a genuine issue of material fact that FOP materially breached the

Lease. If Central Care had been put on notice of the performance element, it could

have raised the issue of material breach in its Response to the Motion. As the

Texas Supreme Court discussed in Mustang, the Restatement lists five

circumstances significant in determining whether a failure to perform is material:

(a) the extent to which the injured party will be deprived of the benefit
which he reasonably expected;
(b) the extent to which the injured party can be adequately
compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to
perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to
perform will cure his failure, taking account of the circumstances
including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or
to offer to perform comports with standards of good faith and fair
dealing.
Mustang, 134 S.W.3d at 199 (citing RESTATEMENT (SECOND) OF CONTRACTS §

241 (1981)). Central Care suffered forfeiture and was drastically deprived of the

benefit which it reasonably expected when it was (1) unable to bill

Medicare/Medicaid for the first six months of operation due to FOP failing to

24
provide the correct mailing address and (2) already experiencing a leaking roof the

very same day the City of Houston issued its Certificate of Occupancy for the

Hillcroft Center. (AA, doc. 17, at 4; 59, at 37-38, 61.) There is no likelihood that

FOP will cure its failure without judicial intervention, as it stalled in issuing the

Hillcroft Center with an accurate mailing address, refused to repair the roof,

unilaterally raised the rent, and then evicted FOP. This behavior does not comport

with standards of good faith and fair dealing. The summary judgment evidence

raises a genuine issue of material fact that FOP’s breach was material, which

would discharge Central Care from its duties under the Lease. See Mustang, 134

S.W.3d at 199.

Here, the Bankruptcy Court’s error in sua sponte dismissing Central Claim’s

breach of contract claim based on the performance element was not harmless, and

this Court should reverse the dismissal of this claim and remand, allowing the

parties to fully develop the summary judgment record prior to a determination of

whether Central Care performed, or was excused from performance, under the

Lease. (AA, doc. 61, at 6.)

III. The Bankruptcy Court erred when it denied Central Care’s Motion for
New Trial following its sua sponte Order granting summary judgment
because its ruling is based on a clearly erroneous view of the evidence
and the law.

Because the order denying Central Care’s Motion for New Trial is based on

an erroneous view of the evidence and the law, the Bankruptcy Court abused its
25
discretion. In the Order, the Bankruptcy Court acknowledges that Central Care’s

Response to the Motion stated, “Central Care’s discovery responses show that it

substantially performed its obligations under the Lease by paying monthly rent.”

(AA, doc. 73, at 3.) However, the Bankruptcy Court failed to view all evidence in

the light most favorable to the nonmoving party, or to draw all reasonable

inferences in that party’s favor. Crawford, 234 F.3d at 902. For example, the

parties dispute facts including what date the Lease term began and how much rent

was due under the Lease. According to the affidavit of Marcus Roland, the Chief

Executive Officer of Central Care from October 2001 through April 2015,

The lease term would begin when the clinic opened and ramped up
operations. Anderson agreed that rent payments would not begin at
the start of the lease term because we knew it would take time for the
center to operate with a profit. In exchange for this concession, I
agree[d] to renovate additional space for church use.
(AA, doc. 59, at 81.) Even though the ribbon cutting ceremony occurred at the

Hillcroft Center in March of 2015, and the Certificate of Occupancy from the City

of Houston is dated April 17, 2015, the Bankruptcy Court determined that the first

payment was due on March 1, 2015. (AA, doc. 17, at 2 and 4; AA, doc. 73, at 4-5.)

Rather than drawing inferences in favor of Central Care, the Bankruptcy

Court consistently adopted FOP’s version of disputed facts. The Bankruptcy Court

concluded that “Central Care was already in default when it states that defendant

failed to perform.” (AA, doc. 73, at 5.) Central Care’s summary judgment evidence

26
shows that it brought leaks to FOP’s attention on April 17, 2015, the same day the

City of Houston issued the Hillcroft Center’s Certificate of Occupancy. (AA, doc.

59, at 37-38.) Central Care’s summary judgment evidence also shows that FOP

failed to issue the Hillcroft Center an address recognized by the United States Post

Office, so Central Care was unable to earn income by billing Medicare/Medicaid

for at least the first six months of operation. (AA, doc. 59, at 61). Notwithstanding

nonmovant Central Care’s summary judgment evidence which created issues of

material fact, the Bankruptcy Court abused its discretion and dismissed Central

Care’s claims. The Bankruptcy Court incorrectly drew reasonable inferences in the

movant’s favor, and its granting of the Motion was based on movant’s version of

disputed facts. Summary judgment is appropriate where the underlying facts are

undisputed, and the record reveals no evidence from which reasonable persons

might draw conflicting inferences about the facts. Templet v. HydroChem Inc., 367

F.3d 473, 480 (5th Cir. 2004). In this case, summary judgment was inappropriate,

and the Bankruptcy Court abused its discretion in denying Central Care’s Motion

for New Trial.

Finally, the Bankruptcy abused its discretion by its erroneous view of the

law. These factual disputes which the Bankruptcy Court improperly tilted in

FOP’s favor were not fully developed in the summary judgment record and should

not have been ruled on without giving Central Care an opportunity to defend

27
against a challenge to the performance element. According to the Bankruptcy

Court, because FOP’s Motion references the elements required for the plaintiff to

prevail on the breach of contract claim, the burden shifted to Central Care to

address each element. “The plaintiff was then required to show that the plaintiff

performed or tendered performance.” (AA, doc. 73, at 4.) This does not accurately

reflect the law for summary judgment. See supra Issue I.

Simply filing a summary judgment motion does not immediately

compel the party opposing the motion to come forward with evidence
demonstrating material issues of fact as to every element of its case.
Russ v. International Paper Co., 943 F.2d 589, 591 (5th Cir. 1991). The practical

implications of shifting the burden on every single element of every cause of action

contained in summary judgment motions is untenable. For the sake of both judicial

clarity and efficiency, the court system would not advise that litigants present

summary judgment evidence on every element of every cause of action challenged

by summary judgment. The Supreme Court of the United States of America

certainly would admonish against this approach and requires a movant to first

satisfy its obligation or demonstrate that there are no factual issues warranting trial

before a nonmovant is required to produce evidence opposing a motion for

summary judgment. See Celotex, 477 U.S. at 323. The Bankruptcy Court abused its

discretion based on an erroneous application of the law in its Order Denying

Motion for New Trial, and this Order should be reversed and remanded.

28
IV. The Bankruptcy Court erred when it granted summary judgment on
Central Care’s breach of contract claim because Central Care
presented a genuine issue of material fact as to damages.

Although the Bankruptcy Court granted summary judgment against Central

Care’s breach of contract claim based on its sua sponte conclusion “that Central

Care breached the lease by failing to pay the rental obligation,” the summary

judgment Order also included the following language:

Moreover, Central Care failed to produce any evidence in response to

written discovery requests to support its claim that Central Care was
damaged as a result of any breach.

(AA, doc. 61, at 6.) The Bankruptcy Court erred in making this assertion, as

Central Care did produce evidence in response to written discovery requests to

support its claims that Central Care was damaged as a result of FOP’s breaches.

(AA, doc. 59, at 34-55.) FOP only challenged roof-related damages in its Motion,

not damages for the alleged breach of contract related to its failure to correct the

mailing address with the U.S. post office. Accordingly, Central Care included

emails in its summary judgment evidence which support its claim that it was

damaged as a result of FOP’s refusal to repair the roof. (AA, doc. 59, at 34-55.)

Summary judgment evidence includes a February 10, 2016 email to Anderson, in

which Altaf Ibrahim stated:

We (Central Care) have incurred additional cost in replacing

numerous ceiling tiles as the roof of the Hillcroft building is in bad
shape, and water starts dripping after a heavy rain. Just recently, yet
once again we had to pay for tile replacement. As you represent the
29
 building owners, can you please assume responsibility for paying this
invoice[?]

(AA, doc. 59, at 34.) Deborah Hunt, Director of Operations for Central Care,

further described the damages from the leaking roof:

In the clinical setting, we have a leak in the vaccine room which

compromises the integrity of our Vaccine for Children’s Program.
Due to the weight of the water, several ceiling tiles burst today. We
have more tiles filling with water and are ready to burst in this room
as well. A requirement of the Vaccine for Children’s Program is for
the refrigerator and freezers to remain dust free. This is a challenge
considering the amount of water dripping in the vaccine room. The
leaks in our vaccine room jeopardizes our program and will be a
financial loss for the entire Central Care Integrated Health Care
system if we are unable to meet our obligations to the program.

The leaks in the Wellness Center and clinical area have become a
liability to our facility. We are placing staff and patients in jeopardy
as water surrounding a light fixture may cause an electrical shortage
and is a safety hazard. Due to the numerous leaks, staff and patients
are in jeopardy of a ceiling tile falling on their head. Because the
facility has not received any water damage restoration treatment, staff
and patients face the potential possibility of exposure to mold.

(AA, doc. 59, at 52.) As Central Care noted in its Response to the Motion, these

emails which are included in its summary judgment evidence were produced in

response to FOP’s Request for Production, Number 27. (AA, doc. 59, at 7.) Central

Care presented a genuine issue of material fact regarding its damages for roof

repair, and the Bankruptcy Court erred in concluding otherwise.

Central Care also presented the Bankruptcy Court with damages related to

the incorrect mailing address in the Lease, even though these contractual damages

30
were not challenged by FOP’s Motion. Central Care provided summary judgment

evidence that it was damaged due to its inability to bill for Medicare/Medicaid

services for approximately six months, from the day it opened for business in April

of 2015 through September of 2015. (AA, Doc. 59, at 61.) Erica Arrezola emailed

Anderson to notify FOP of the address problem on July 1, 2015:

We are having an issue getting our insurance numbers for the

Hil[l]croft site. The address for the sight is not passing the validating
process stating that address is nonexistent. We contacted the postal
service for further clarification[,] and they stated the address needs to
be registered by the owners of the building.

(AA, doc. 59, at 57.) Because Central Care presented a genuine issue of material

fact regarding its damages resulting from FOP’s breaches of contract, this Court

should reverse the order granting summary judgment on Central Care’s breach of

contract claim and remand.

31
IV. The Bankruptcy Court erred when it denied Central Care’s Motion for
New Trial because it made a clearly erroneous assessment of the
evidence

Central Care raised a genuine issue of material fact in support of its breach

of contract damages. See supra Issue IV. However, in its Order denying Central

Care’s Motion for New Trial, the Bankruptcy Court found:

Plaintiff’s breach of contract claim was defeated when plaintiff failed

to offer any summary judgment evidence that it performed or that its
failure to perform was excused by breaches of the defendant. In
addition, Central Care failed to allege that breach by the defendant
was ‘material’ or that Plaintiff was damaged ‘as a result of’ the
breach. Mere allegations that Plaintiff suffered damages do not, and
cannot, suffice as summary judgment evidence that would raise a
genuine issue of material fact for trial. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992).

(AA, doc. 73, at 6.) Whether FOP’s breaches are material or not is not fatal

to Central Care’s breach of contract claim. In the standard contract dispute,

one party cancels the contract or refuses to pay due to alleged breaches by

the other; in such circumstances, jurors will often find both parties failed to

comply with the contract unless instructed that they must decide who

committed the first material breach. Mustang Pipeline Co., Inc. v. Driver

Pipeline Co., Inc., 134 S.W.3d 195, 200 (Tex. 2004). FOP’s Motion is not

based on its breach of contract counterclaim or on any alleged breach of

Central Care, and it does not attack Central Care’s performance under the

Lease. (AA, doc. 46.) Central Care appropriately responded to FOP’s

32
summary judgment not by focusing on materiality of the breaches but by

raising genuine issues of material fact regarding both elements that FOP

challenged: breach and damages. (AA, doc. 59.)

Central Care went beyond mere allegations and presented summary

judgment evidence that it was damaged by FOP’s breaches of the Lease. See supra.

Central Care demonstrated, through summary judgment evidence, that FOP’s

failure to repair the roof disrupted Central Care’s business and caused damages.

(AA, doc. 59, at 34-55.) Central Care’s summary judgment evidence also

establishes damages based on FOP’s failure to provide Central Care with the

correct mailing address, as Central Care could not bill for Medicare/Medicaid

services for approximately six months. (AA, doc. 59, at 61.) As the court pointed

out in Lujan, in response to a summary judgment motion, a plaintiff’s specific facts

raised by affidavit or other evidence will be taken as true. Lujan, 504 U.S. at 561.

In this case, the Bankruptcy Court did not take Central Care’s specific facts

as true. See id. Rather, it abused its discretion by overlooking Central Care’s

damages, making a clearly erroneous assessment of the evidence and failing to

view the evidence in the light most favorable to the nonmovant, Central Care.

Crawford, 234 F.3d at 902. Accordingly, its denial of the Motion for New Trial

should be reversed and the case remanded.

33
V. The Bankruptcy Court erred when it granted summary judgment in
favor of FOP on Central Care’s unjust enrichment claim because
Central Care raised a genuine issue of material fact in support of this
equitable claim.

Central Care raised a genuine issue of material fact regarding its equitable

claim of unjust enrichment in response to FOP’s Motion. (AA, doc. 59, at 9-14.)

Unjust enrichment occurs when a person has wrongfully secured a benefit or has

passively received one which it would be unconscionable to retain. See Eun Bok

Lee v. Ho Chang Lee, 411 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2013,

no pet.). An action for unjust enrichment is based upon the equitable principle that

a person receiving benefits which were unjust for him to retain ought to make

restitution. See Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 927 (Tex.

App.—Fort Worth 1994, writ denied). Recovery under unjust enrichment is an

equitable right and is not dependent on the existence of a wrong. Id. Restitution in

equity is warranted when “money or property identified as belonging in good

conscience to the plaintiff is clearly traced to particular funds or property in the

defendant’s possession.” Great–West Life & Annuity Ins. Co. v. Knudson, 534 U.S.

204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).

Central Care raised a genuine issue of material fact regarding its equitable

interest in the Property. Specifically, Central Care demonstrated that it invested

approximately $150,000 of its own funds for construction. (AA, doc. 59, at 81.) In

addition to this contribution, Central Care obtained a $1.1 million Community

34
Development Block Grant (“Grant”) from the City of Houston toward the

construction for FOP’s health center. (AA, doc. 59, at 81.) Central Care entered an

agreement dated December 12, 2013 with the City of Houston governing its

obligations as recipient of the $1.1 million Grant. (AA, doc. 46-11.) The Grant

contained a five-year restricted use period required to forgive its repayment. (AA,

doc. 46-11, at 4). Because FOP replaced Central Care, the Grant recipient, with

Avenue 360 as the provider of medical services one year before the restricted use

period expired, Central Care became liable to replay the $1.1 million Grant to the

City of Houston. (AA, doc. 46-11, at 4, 8, 16.) It is manifestly unjust that Central

Care came up with funding for construction of FOP’s health center but was

removed by FOP prior to expiration of the Grant’s restricted-use period, Central

Care is liable to repay the City of Houston the $1.1 million Grant, FOP benefits by

leasing the Property to Avenue 360 who now operates the health center, and FOP

also benefits from the use of improvements effectuated by Central Care. (AA, doc.

59, at 10-13.) Central Care contributed its money and obtained a Grant to FOP’s

benefit and its own detriment, and the Property is clearly in FOP’s possession. For

FOP to retain this benefit would be unconscionable. Accordingly, the Bankruptcy

Court erred by dismissing Central Care’s equitable claim because a genuine issue

of material fact was raised regarding FOP’s unjust enrichment by use of Central

35
Care’s funds to enhance the Property. This Court should reverse the order granting

FOP summary judgment on Central Care’s unjust enrichment claim and remand.

VI. The Bankruptcy Court erred when it denied Central Care’s Motion for
New Trial regarding the unjust enrichment claim because its ruling is
based on a clearly erroneous assessment of the evidence.

The Bankruptcy Court’s denial of Central Care’s Motion for New Trial was

based on an erroneous assessment of the evidence and should be reversed. The

Bankruptcy Court’s ruling states:

Central Care claims it ‘invested’ $1.2 million of its own funds,

however, admits that the funds used to build out the facility were
obtained through a Community Development Block Grant. Further,
plaintiff failed to adequately provide evidence that Fountain of Praise
or George Anderson had been unjustly enriched.

(AA, doc. 73, at 7.). However, Central Care’s Response presents evidence showing

a genuine issue of material fact as to its investment and FOP’s unjust enrichment.

$1.1 million of the money contributed by Central Care was obtained through the

City of Houston’s Grant. (AA, doc. 59, at 81.) However, Central Care also

demonstrated through summary judgment evidence that it invested approximately

$150,000 of its own funds for construction of the Hillcroft Center. (AA, doc. 59, at

81.) FOP benefits by leasing the Property to Avenue 360 and from the use of

improvements effectuated by Central Care. (AA, doc. 59, at 10-13.) Because of

Central Care’s substantial efforts and partnership to obtain funding and FQHC

36
status, FOP owns a faith-based FQHC which provides healthcare services to

underserved members of its church and community. (AA, doc. 59, at 79.)

The Bankruptcy Court abused its discretion when it denied Central Care’s

Motion for New Trial because its ruling is based on a clearly erroneous assessment

of the evidence. Central Care established a genuine issue for trial, but the

Bankruptcy Court failed to view the summary judgment evidence in the light most

favorable to the nonmovant. Crawford, 234 F.3d at 902. This Court should reverse

the denial of Central Care’s Motion for New Trial.

Accordingly, this Court should reverse the portion of its Order Granting

Summary Judgment that dismisses Central Care’s breach of contract and unjust

enrichment claims, reverse the Bankruptcy Court’s denial of Central Care’s Motion

for New Trial, and remand to the Bankruptcy Court with the breach of contract and

unjust enrichment claims against FOP reinstated.

CONCLUSION

Based on the foregoing, Appellant respectfully asks this Court to reverse the

Bankruptcy Court’s Order Granting Defendants’ Motion for Summary Judgment as

to Appellant’s breach of contract and unjust enrichment claims against FOP,

reverse its denial of Central Care’s Motion for New Trial, and remand these claims

to the Bankruptcy Court for further proceedings.

September 30, 2020

37
 Respectfully submitted,

/s/ Susan J. Clouthier

Susan J. Clouthier
Clouthier Law, PLLC
10210 Grogans Mill Rd., Suite 330
The Woodlands, Texas 77380
Tel: (832) 849-5410
Fax: (832) 514-6215
susan@clouthierlaw.com

Attorney for Appellant

South Central Houston Action
Council, d/b/a Central Care
Integrated Health Services

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Appellant’s Brief was filed on this

30th day of September, 2020 with the Clerk of Court using the CM/ECF system,

which will send notification of such filing to counsel of record to other parties to

the appeal as follows:

Greenberg Traurig
Paul Brown Kerlin
Dwayne L Mason
Joshua Abraham Lesser
1000 Louisiana St
Suite 1700
Houston, TX 77002
Ph: 713-374-3590
Attorneys for South Post Oak Baptist Church, Inc.
d/b/a The Fountain of Praise

/s/ Susan J. Clouthier

38
 Susan J. Clouthier

CERTIFICATE OF COMPLIANCE

In accordance with Fed. R. App. P. 32(a)(7)(C), the foregoing Appellant’s

brief is proportionately spaced, uses conventional font Times New Roman, has a

typeface of 14 points or more and contains 8,652 words.

/s/ Susan J. Clouthier

Susan J. Clouthier

39