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Click here for the full text of this decision FACTS:In August 2000, the Lyman D. Robinson Family Limited Partnership and the individual partners entered into a purchase contract to sell real estate. The buyer deposited $20,000 in earnest money with McWilliams & Thompson, an escrow agent. At the time, McWilliams was also an escrow agent for another transaction involving the same buyer, who had deposited $15,000 in earnest money for that transaction. In September 2001, the partnership demanded release of the escrow funds. McWilliams mistakenly released both the $20,000 from the partnership’s transaction and the $15,000 from the buyer’s other transaction. McWilliams asked the partnership to return the $15,000 (plus interest), but the partnership refused. A lawsuit ensued, and a trial court eventually granted McWilliams’ summary judgment motion. HOLDING:Affirmed. It is a general rule that money paid under a mistake of fact, that is, an unconscious ignorance or forgetfulness of a fact, may be recovered. This is true where, for example, by reason of such a mistake a debt has been paid twice, or the amount paid was in excess of the amount due. The court disagrees with the partnership that it would be prejudiced by having to return the mistakenly paid money. Nor was the partnership misled by the overpayment. Summary judgment against the partnership was proper. Based on its conclusion that the partnership would not be prejudiced, the court finds that there is not fact issue over whether the claim is barred by laches. Finally, the court rejects the partnership’s argument that, pursuant to Texas Rule of Civil Procedure 94, they are entitled to assert the affirmative defense of proportionate responsibility. Even assuming the partnership intended that each individual partner should only be required to repay his or her own pro rata share of the overpayment, the partnership did not make that specific argument in their pleadings and presented no further complaint on the issue. A single sentence in the partnership’s original answer referring to Rule 94 was not sufficient to bring it to the trial court’s attention. OPINION:: Bridges, J.; Moseley, Bridges and Lang-Miers, JJ.

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