REVERSE IN PART, AFFIRM IN PART, REMAND; and Opinion Filed June 21, 2013.




                                                               in The
                                           Qtnurt nf Appiits
                                  Fifttj iitrict uf icxa it Jatta
                                                     No, 05-11-01423-CV

                   CITIBANK (SOUTH DAKOTA), N.A., AppellantJCross-Appellee
                                                                  V.
         MICHAEL S. TRAN, M.D. AND THANH TRAN, Appellees/Cross-Appellants

                                On Appeal from the 95th Judicial District Court
                                            Dallas County, Texas
                                     Trial Court Cause No. 08-14313-D

                                            MEMORANDUM OPINION
                                       Before Justices Lang-Miers and Fillmore’
                                            Opinion by Justice LangMiers
          AppellantJCrossAppel lee                Citibank        (South      Dakota),        N.A.      and      Appellees/Cross

Appellants Dr. Michael S. Tran and Mrs. Thanh Tran appeal from the amended final judgment

following a jury trial in this breach of contract and libel case. For the following reasons, we

reverse the trial court’s judgment on the Trans’ breach of contract claim and claim for attorney’s

fees, affirm the judgment on the Trans’ libel claim, and render a takenothing judgment in favor

of Citibank. We remand to the trial court for the determination of Citibank’s attorney’s fees on

its breach of contract counterclaim.




     The Honorable Mary Muiphy, retired Justice, Court of Appeals for the Fifth District of Texas at Dallas, sat on the panel during oral
argument and original submission, but did not participate in this decision.
                                          BACKGROUN fl

       This lawsuit arose from a credit card purchase in August 2006. Dr. Tran purchased

medical equipment from a seller on eBay. He charged the purchase price of $14,580 to a credit

card issued by Citibank to his wife, PayPal divided the payment into two credit card transactions:

a $10,000 charge made the day Dr. Tran purchased the equipment, and a $4,580 charge made the

next day. When Dr. Tran received the equipment, he claimed it was missing a part advertised on

eBay and called the seller about returning the equipment. At first the seller okayed the return, but

was going to charge a restock fee and require Dr. Tran to pay the return shipping. Dr. Tran was

not satisfied with the seller’s response and called Citibank to cancel the transaction. Citibank

sent complaint forms to Mrs. Tran to complete, one for each credit card charge. Dr. Tran

completed and promptly returned the forms to Citibank. He did not return the equipment to the

seller. The seller later called Dr. Tran and said he would not accept the return of the equipment.

       Over the next several months, Citibank issued chargebacks for both credit card charges,

but it issued those chargebacks seven weeks apart. The chargeback for the $4,580 charge was

issued in early October 2006; the chargeback for the $10,000 charge was not issued until late

November 2006. The seller accepted the $4,580 chargeback, leaving only the chargeback for

$10,000 in dispute. PayPal disputed the $10,000 chargeback because the merchandise had not

been returned.

       Citibank asked the Trans several times to provide proof that they had returned the

equipment. Citibank notified the Trans in late December 2006 that they had to provide proof of

return by January 16, 2007, or the charge would be rebilled to their account. ft is undisputed that

the Trans did not return the equipment or provide proof of return by January 16. Citibank

rebilled the $10,000 charge, along with late fees and interest charges, to the Trans’ account.

Citibank also reported the disputed charge to the credit bureaus.


                                                —2—
       ihroughout 2007, the Trans and Citibank continued to exchange communications about

the $10,000 charge and related fees. Eventually Citibank learned that the Trans had returned the

equipment on January 19, 2007. Citibank removed the late fees and interest charges from the

Trans’ account and asked the Trans to provide proof that PayPal had credited their account for

the $10,000. It is undisputed that the Trans’ Citibank account was never credited, Meanwhile, the

Trans hired a lawyer who was able to get the seller to refund $4,500 directly to the Trans.

       In late 2008, the Trans sued Citibank for breach of an oral agreement and libel. They

claimed that Citibank orally agreed to issue timely notices of their intent to challenge the

purchase of the medical equipment and that Citibank failed to comply with the agreement. They

also claimed that Citibank libeled them when it reported the disputed charge to the credit

bureaus, and they were damaged when they sought to obtain a mortgage and had to pay a higher

interest rate. Citibank counterclaimed for breach of the written card agreement.

       The trial court granted summary judgment on Citibank’s counterclaim for breach of the

written card agreement, and the remaining issues were tried to a jury. The jury found in favor of

the Trans on all issues. It awarded $13,946 in damages on the breach of oral agreement claim,

$5,000 for mental anguish on the libel claim, and $128,991 in attorney’s fees through trial plus

conditional attorney’s fees through the appeals process. Citibank moved for judgment

notwithstanding the verdict on all issues, and the trial court set aside the jury’s findings on the

Trans’ libel claim. Citibank also filed a motion to modify the judgment in which it asked for an

award of attorney’s fees for its breach of contract counterclaim against Mrs. Tran. The trial court

did not rule on the motion and it was overruled by operation of law. After offsetting the $10,000

judgment awarded to Citibank on its counterclaim for breach of the written card agreement, the

court awarded the Trans $3,946 on their breach of oral agreement claim and $177,991 in

attorney’s fees plus court costs and interest. Both parties appeal.


                                                 —3—
                   THE TRANS’ CLAIM FOR liREACH OF ORAL AGREEMENT

       Citibank argues that its relationship with the Trans is governed by the written card

agreement and there is no evidence the parties agreed to modify the written agreement. It also

argues that there is no evidence Citibank formed an oral agreement with the Trans. and, even if

there was, there is no evidence Citibank breached it or that the Trans suffered damages.

                                      Standard of Review

       An appellant attacking the legal sufficiency of an adverse finding on an issue on which it

did not have the burden of proof must demonstrate there is no evidence to support the adverse

finding. Croucher v. Croucher, 660 S.W,2d 55, 58 (Tex, 1983); Affordable Power, LP. v.

Buckeye Ventures, Inc., 347 S.W.3d 825, 830 (Tex. App.—Dallas 2011, no pet.). When

examining a legal sufficiency challenge, we review the evidence in the light most favorable to

the challenged finding and indulge every reasonable inference that would support it, City qf

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In doing so, we do not consider the evidence

“in isolated bits and pieces divorced from its surroundings; it must be viewed in its proper

context with other evidence.” AutoZone, Inc. v. Reves, 272 S.W.3d 588, 592 (Tex. 2008).

Evidence is legally sufficient if it rises to a level that would enable a reasonable and fairminded

jury to make the finding. City of Keller, 168 S.W.3d at 827. A legal sufficiency challenge fails if

there is more than a scintilla of evidence to support the finding. Kroger Tex. Ltd. P’ship v.

Suberu, 216 S.W.3d 788, 793 (Tex. 2006); AJjordable Power, L.P., 347 S.W.3d at 830. Evidence

that is “so weak as to do no more than create a mere surmise or suspicion” of a fact is not legally

sufficient evidence that the fact exists. Suberu, 216 S.W.3d at 793 (quoting Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)); see also Serv. Corp. Int’l v. Guerra, 348 S.W.3d

221, 228 (Tex. 2011).




                                               -4-
                                         Applicable Law

        Citibank contends that we should apply South Dakota law in our analysis of the Trans’

claims because the written card agreement contains a South Dakota choice of law provision.

Conversely, the Trans contend that we cannot apply South Dakota law because Citibank did not

comply with rule 202 of the Texas Rules of Evidence concerning judicial notice of the law of

other states. See TEx. R. EvID, 202. Although Citibank’s motion for summary judgment argued

that South Dakota law should apply, there is nothing in the record to show that Citibank moved

the trial court to apply South Dakota law to the issues submitted to the jury or that the trial court

applied South Dakota law. See Id. Consequently, we apply Texas contract law in our analysis of

the issues.

        A plaintiff suing based on a contract, whether written or oral, must prove the essential

elements of a contract, including offer, acceptance, and a meeting of the minds. See Principal

Lit’ Ins. Co. v. Revalen Dcv., LLC, 358 S.W.3d 451, 454—55 (Tex. App.—Dallas 2012, pet.

denied); Branch Banking & Trust C’o. v. TCJ Luna Ventures, LLC, No. 05-12-00653-CV, 2013

WL 1456651, at *3 (Tex. App.—Dallas Apr. 9, 2013, no pet. h.). “[Tihe offer must be

reasonably definite in its terms and must sufficiently cover the essentials of the proposed

transaction that, with an expression of assent, there will be a complete and definite agreement on

all essential details.” Principal Life Ins. C’o., 358 S.W.3d at 455; see also Effel v. McGarry, 339

S.W.3d 789, 792 (Tex. App.—Dallas 2011, pet. denied) (to form an enforceable contract, “the

minds of the parties must meet with respect to the subject matter of the agreement, and as to all

of its essential terms”). In other words, “[tjhe parties must assent to the same thing, in the same

sense, at the same time.” Principal Life Ins. Co., 358 S.W.3d at 455. All essential terms of the

agreement must be agreed upon before a contract may be enforced by the courts. T. 0. Stanley

Boot Co., Inc.     Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). And “[ejach contract


                                                —5—
should be consl(lered eparate1v to determiiic its material terms” Id. If the terms of an alleged

contract are so indefinite that it is impossible for the courts to determine the rights and

ohl igations of the parties, it is not an enfrrceable agreement. Ef,tI. 339 S .W.3d at 792; see (Ilso

Merit   i’.    Iluertti. 1 36 S.W.3d 383. 390 (Tex. App.—Corpus (‘hristi 2004. no pet.) (“It is well

established that the terms of an oral contract must be clear, certain and definite.”)

                                               I)iscussion

          The trial court submitted the following question to the jury:

          Did Dr. and Mrs. Tran reach an oral agreement with Citibank that Citibank would
          act on behalf of the Trans to timely issue proper notices of the Trans’ intention to
          challenge, investigate and/or cancel the August 2006 disputed purchase of
          medical equipment from fthe sellerl?

                    “The August 2006 disputed purchase of medical eqmpinent
                    means Dr. Tran’ s August 2006 purchase of medical equipment
                    from I seller}, using. as an authorized user, the Gold MasterCard
                    issued to Mrs. Tran by Citibank.

                    In deciding whether the parties reached such an agreement. if any,
                    you may consider what they said and did in light of the
                    surrounding circumstances, including any earlier course of dealing.
                    You may not consider the parties’ unexpressed thoughts or
                    intentions.

              Citibank argues that there is no evidence to support the jury’s “yes” answer to the

question. ft argues that there is no evidence of what the parties intended as “timely” notice, no

evidence of what the parties intended as “proper” notice, no evidence of the parties’ intent about

to whom the notice should be given, and no basis in the record for this Court to understand

Citibank’s obligations under the alleged oral agreement.

          The Trans contend that Citibank did not preserve its arguments that the “terms were

unclear, indefinite” and that the “oral agreement lacked sufficient clarity to be understood”

because it did not argue this below. But we conclude that Citibank preserved its arguments in its

objections to the submission of the jury charge and in its motion for judgment n.o.v. See


                                                   —6—
Dejiertos       V.   Dolkis Bayou Bend, LIL, 350 S,W.3d 659, 664 (Tex. App—Dallas 201 1, pet.

denied) (discussing preservation of legal sufficiency complaint). Citibank argued that the

question should not he submitted because there was no “evidence of a separate oral agreement,”

no evidence of a “meeting of the minds,” and “lilt’s not a contract” It also argued in its motion

for judgment n,o.v. that there is “no evidence of oral communications in which such an

agreement might have been reached,” “no evidence of formation of any such oral agreement,”

and “no evidence of material terms of any such oral agreement.” We conclude that these

arguments preserved a claim that the terms of the agreement “were unclear, indefinite” or

“lacked sufficient clarity to be understood and enforced[. I” See id.

           To reverse the jury’s finding on legal insufficiency grounds, we must conclude that the

Trans offered no evidence to support an essential element of the contract. The Trans contended,

and the jury found, that Citibank orally agreed to “timely issue proper notices.” The material

terms of the alleged agreement, then, included that Citibank would “timely issue” notices

challenging the transaction, We begin our analysis by reviewing the record for evidence

favorable to a finding that Citibank agreed to “timely issue” the notices.”
                                                                  2

           Dr. Tran is the only witness to testify about the oral agreement with Citibank. Dr. Tran

testified that when he was unable to get a satisfactory response from the seller about returning

the medical equipment, he called Citibank to “see if they can help me to get the money back.” He

told Citibank that he “want[edj to send this back and get my money back.” A Citibank

representative told Dr. Tran that it has a “certain procedure” it has to follow, that it would send

him written complaint forms to complete, sign, and return, and then Citibank would “try to help

[himj to get the money back.” A few days later, Dr. Tran received the two forms from Citibank,



    2
        By “notices,” it appears the parties were refeffing to Citibank’s chargebacks.



                                                                        —7—
one for each credit card charge. The forms were identical except for the amount of the

transaction. Dr. Tran handwrote his answers (indicated in italics):

       Dear Thanh N Tran:

       Thank, you for contacting our Customer Service Center, This letter is regarding
       your inquiry about the transaction dated 08Aug-06 in the amount of $10,000.00
       I $4,580.00 made at PAYPAL [merchant name I with account number [15664.
       Please assist us with this investigation for $l000ftOO I$4580,00j by promptly
       reviewing, completing, and returning the following information within 10 days of
       your receipt of this letter, If we do not receive your response, we will assume the
       charge is correct and rebill your account.

       An important first step in resolving this matter is for you to attempt to contact the
       merchant and return the merchandise (return receipt requested). Then provide us
       with the following:

         “I received defective merchandise from. the merchant by mail or delivery on
       /5/Q [/28/06j (date) I returned the merchandise on _/_/_ (date)’ Attempts
       to return the item repeatedly      unsuccessful [Attempts to return the item
       repeatedly unsuccessfuij

        A description of the defect. Item received with missing part as described on
       Ebay [Item received with missing component as described on Ebavj

        o The merchant’s response to your request for credit or the reason you were
       unable to contact them. If available, please enclose a copy of the of the [sic] credit
       slip. Merchant was asking for more money Thr the missing part in response to my
       inquiry about the involved part [Merchant was asking fr more money for the
       missing part in response to my ingui about the missing part]

        A copy of a certified postal receipt or a tracer from the shipping company. This
        °


       must be signed by the merchant showing proof of return. If not available, please
       explain. Not available merchant refused to authorize the return [Not available
                                —                                                                    —




       merchant refi1sed to authorize the returnj

        Cardmember Signature Michael Tran [Michael Tran]                      Date 9/7/06 [9/7/06]

        A conditional credit has been issued to your account while we investigate this
        matter on your behalf. Please respond within the next 10 days to: [address].

        Dr. Tran also testified that he asked Citibank for “assistance” and he believed

“wholeheartedly that they   —   they will give me the assistance.     .   .    .   They will help.” Dr. Tran

thanked Citibank “for your assistance in protecting my credit card purchase.”


                                                —8—
       The record showed that after Citibank received the completed complaint forms, it

assigned the forms to two different people. As a result, Citibank issued two chargebacks at two

different times about seven weeks apart. The Trans argued that Citibank orally agreed to

“timely” challenge the transaction and breached the agreement when it did not issue the

chargebacks together. But the Trans did not offer any evidence to show that Citibank agreed to

issue the notices or chargehacks by a certain date, within a certain time frame, or at the same

time. In closing argument, the Trans argued that Citibank had “clear, lawful instructions to

follow, and they just don’t obey those instructions.” But there is nothing in the record to show

that Citibank had instructions on the timing of the chargebacks. If the Trans were referring to the

complaint forms as the “instructions,” the forms do not speak to the timing of the challenges. At

most they show that Citibank agreed to investigate the charges.

       The Trans also contend that Citibank’s representative “established the ‘goof’ of Citibank”

in issuing the notices seven weeks apart and that her testimony “alone, could be seen by the

jurors as its failure to comply with the oral agreement in its trusted role as agent for the Trans.”

But before there can be a breach, there must have been an agreement. And as we have discussed,

there is no evidence in the record about the timing of the notices. We conclude that the Trans did

not offer legally sufficient evidence of a material term of the oral agreement, and, consequently,

the contract fails for indefiniteness. See TO. Stanley Boot   co., 847 S.W.2d at 221—22. Because
the Trans did not prevail on appeal on their claim for breach of oral agreement, they are not

entitled to recover attorney’s fees on that claim, and we reverse the award of attorney’s fees.

                   CITIBANK’S COUNTERCLAIM FOR BREACH OF CONTRACT

        Before trial, the court granted partial summary judgment in favor of Citibank on its

counterclaim against Mrs. Tran for the $10,000 credit card debt. The trial court did not award

Citibank its attorney’s fees, however, and instead submitted that issue to the jury. The jury

                                                —9—
awarded zero attorney’s fees to Citibank, and Citibank filed a motion to modify the judgment.

The trial court did not rule on the motion. Citibank argues that it is entitled to recover attorney’s

fees because it prevailed on its breach of contract counterclaim against the Trans and the trial

court erred when it declined to modify the judgment to award attorney’s fees to Citibank. The

Trans argue that Citibank is not entitled to its attorney’s fees because it did not segregate the fees

incurred solely ftr the breach of contract counterclaim.

                                                        Standard of Review

          We review the denial of a motion to modify a judgment for an abuse of discretion, See

Wagner v. Edlund, 229 S.W.3d 870, 879 (Tex. AppDallas 2007, pet. denied). We may reverse

only if the trial court acted unreasonably or in an arbitrary manner, without reference to guiding

rules or principles. See Beaumont Bank, N.A. v. Butler, 806 S.W.2d 223, 226 (Tex. 1991).

           A trial court may disregard a jury’s negative finding if there was no evidence to support

the finding. Cale’s Clean Scene ‘arwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex. App.—

Houston [14th Dist.j 2002, no pet.). Consequently, we review the evidence supporting the jury’s

finding for legal sufficiency. See Id. We first examine the record for evidence to support the

finding. Id. If there is no evidence to support the jury’s finding, we then examine the evidence to

determine if the opposite finding is established as a matter of law. See Id.

                                                            Applicable Law

           Attorney’s fees are recoverable by the prevailing party in a breach of contract claim.
                                                                                           3

TEx. CIV. PRAC. & REM. CODE ANN.                         § 38.001(8) (West 2008); Citibank (S.D.), N.A. v. Durden,
No. 05-11-00154-CV, 2012 WL 6096569, at *4 (Tex. App.—Dallas Dec. 7, 2012, no pet.)

       Citibank argues that South Dakota law applies to its counterclaim for breach of the written card agreement. However, as we noted earlier,
Citibank did not comply with rule 202 of the rules of evidence regarding notice of a sister state’s laws, Regardless, South Dakota law also allows
the recovery of attorney’s fees by the prevailing party if the contract provides for the recovery of those fees. Arrowhead Ridge 1, LLC v. Cold
Stone Creamert’, Inc., 800 N.W.2d 730, 737 (S.D. 2011) (attorney’s fees in South Dakota “are recoverable if the parties’ contract so provides”)
(quoting Credit Collection Servs., Inc. v. Pesicka, 721 N.W.2d 474, 477 (S.D. 2006)); see also S.D.C.L. § I5—l738 (West, Westlaw through
2006 amendments) (“The compensation of attorneys and counselors at law for services rendered in civil or criminal actions and special
proceedings is left to the agreement, express or implied, of the parties....”).



                                                                     —10—
(mem. op.) (same). If the prevailing party properly proves attorney’s fees, the jury does not have

the discretion to deny an award of attorney’s fees. Recognition Commc ‘ns, Inc.        ‘.   Am. Auto.

Ass’n, Inc., 154 S.W.3d 878, 890—91 (Tex. App.—DalIas 2005, pet. denied), The jury may make

a finding of zero attorney’s fees only when the evidence did not establish that attorney services

were provided or the value of those services, or the evidence showed affirmatively that no

attorney services were needed or the services provided were of no value, Id. at 891.

        A party must segregate its attorney’s fees for recoverable and nomrecoverable claims.

Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 313—14 (Tex. 2006). When “it cannot be

denied that at least some of the attorney’s fees are attributable only to claims for which fees are

not recoverable, segregation of fees ought to be required and the jury ought to decide the rest.”

Id. at 314.

                                           Discussion

        Citibank is entitled to attorney’s fees because it prevailed on its breach of contract

counterclaim against Mrs. Tran, Citibank contends that it offered uncontroverted evidence of

reasonable and necessary attorney’s fees in the amount of $68,595.67. The Trans argue that

Citibank’s summary judgment motion asked for $42,360 in attorney’s fees, and they argue that

Citibank did not prove that it incurred $68,595.67 in attorney’s fees on a recoverable claim.

        Referring to invoices for services rendered, attorney Evan Mueller testified at trial that

reasonable and necessary attorney’s fees through trial for the prosecution of Citibank’s breach of

contract counterclaim were $68,595.67. He testified that reasonable and necessary attorney’s fees

on appeal were $15,000 for an appeal to the court of appeals, $10,000 for filing a petition for

review to the supreme court, $10,000 for preparing a brief on the merits if the court granted the

petition, and $2,500 for presenting oral argument to the supreme court. Mueller testified that he

segregated his recoverable fees from the fees that are not recoverable.


                                               —11—
       On cross-examination, Mueller agreed that Citibank asked for $42,360 in attorney’s fees

when it filed the motion for summary judgment on the credit card debt, But he explained that the

Trans did not consent to judgment, the Trans contended they did not have to pay the credit card

charge of $10,000, the Trans never offered to pay the $42,360 in attorney’s fees, the Trans

opposed the relief Citibank sought, and Citibank had prosecuted the claim since 2009. He

testified that fees of $68,595.67 were reasonable and necessary through trial and represented the

segregated fees for prosecuting Citibank’s breach of contract claim. See cardiac Perfusion

Servs., Inc. v. Hughes, 380 S.W.3d 198, 212 (Tex. App.—Dallas 2012, pet. filed). Mueller’s

testimony established that attorney services were provided and that those services had value. See

Recognition Commc’ns, Inc., 154 S.W.3d at 891. Consequently, there is no evidence to support

the jury’s finding of zero attorney’s fees for Citibank’s prosecution of its breach of contract

counterclaim. See id.

       The Trans argue, however, that Mueller did not segregate his fees for recoverable and

non-recoverable claims. We agree. Although Mueller testified that the fees were segregated, he

testified that he arrived at the segregated fees by deducting those fees incurred before Citibank

filed its counterclaim for breach of contract. He did not offer testimony about segregation

pursuant to the law enunciated in Tony Guilo Motors. See 212 S.W.3d at 313—14. And the

invoices admitted into evidence do not segregate the fees by recoverable and nonrecoverable

claims. Although it is possible the fees were necessarily incurred in prosecuting Citibank’s

breach of contract counterclaim, Mueller’s testimony is not sufficient for us to arrive at an

amount of attorney’s fees as a matter of law. See Recognition Conzmc’ns, Inc., 154 S.W.3d at

891; cale’s Clean Scene Carwash, Inc., 76 S.W.3d at 786. Consequently, we remand to the trial

court the issue of the amount of Citibank’s attorney’s fees on its breach of contract counterclaim.




                                               —12—
                            TRANS CROSS-APPEAL ON LIBEL CLAIM

         The amended judgment set aside the jury’s favorable findings on the Trans’ libel claim

and rendered judgment that the “written statements regarding the ITransi                  .   .   were substantially

true, as a matter of law.” In their crossappeal, the Trans argue that the trial court erred when it

granted Citibank’s motion for judgment n,o,v. and set aside the jury’s findings on their libel

claim.

                                       Standard of Review

         A trial court may disregard a jury’s finding and grant a motion for judgment n.o,v. when

there is no evidence to support the jury’s finding, TEx, R. Civ. P. 301; Helping Hands Home

care, Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 515 (Tex. App.—Dallas

2013, pet. filed). We review a trial court’s decision to grant a judgment n.o,v, for legal

sufficiency. Helping Hands Home care, 393 S.W.3d at 515. Considering the evidence favorable

to and reasonable inferences that tend to support the finding, we will affirm the trial court’s

decision if the evidence supporting the finding is no more than a scintilla. See                  city qf Keller, 168
S.W.3d at 810.

                                         Applicable Law

         A statement is defamatory if it “tends to    .   .   .   injure a living person’s reputation and

thereby expose the person to public hatred, contempt or ridicule, or financial injury or to

impeach any person’s honesty, integrity, virtue, or reputation.           .   .   .“   TEX. CIV. PRAC. & REM.

CoDE ANN.    § 73.00 1 (West 2011). To prevail on a libel claim, the plaintiff must prove that the
defendant (1) published a statement of fact; (2) that was defamatory concerning the plaintiff;

(3) while acting with negligence regarding the truth of the statement. Main v. Royall, 348 S.W.3d

381, 389 (Tex. App.—Dallas 2011, no pet.). True statements cannot form the basis of a


                                               —13—
defamation complaint. Grand Champion Film Prod, LLC v. Cinemark USA, Inc, 257 SW3d

478, 481 (Tex. App.—Dallas 2008, no pet.).

                                          Discussion

        Before trial, the court granted summary judgment in favor of Citibank on its claim that

Mrs. Tran owed the $10,000 credit card charge. The judge found as a matter of law that Mrs.

Tran, and Dr. Tran as an authorized user, owed the $10,000 debt. The Trans have not appealed

that summary judgment and, in fact, concede they owe the credit card charge of $10,000.

Consequently, any report Citibank made to the credit bureaus stating that Dr. or Mrs. Tran owed

the credit card charge of $10,000 was true, We conclude the trial court did not err by setting

aside the jury’s answers on the libel claim. We resolve the Trans’ crossappeal issues against

them,

                                         CONCLUSION

        We reverse the trial court’s judgment on the Trans’ claims for breach of contract and

attorney’s fees and render a take-nothing judgment in favor of Citibank. We affirm the trial

court’s takenothing judgment on the Trans’ libel claim. We remand to the trial court for the

determination of Citibank’s attorney’s fees on its breach of contract counterclaim against Mrs.

Tran.




                                                 /Elizabeth Lang-Miers/
                                                 ELIZABETH LANG-MIERS
                                                 JUSTICE


111423 F.P05




                                             —14--
                                                   Qtnurt 01
                                   3Fifth Oiitrict of                                 it 3attui
                                                         JUDGMENT

CITIBANK (SOUTH DAKOTA), N.A.,                                             On Appeal from the 95th Judicial District
                                                                           Court, Dallas County, Texas
                                                                           Trial Court Cause No. 05143 13-D,
No. 051 l-01423-CV                      V.                                 Opinion delivered by Justice Lang-Miers,
                                                                           Justice Fillmore participating.
                                                                                            4
MICHAEL S. TRAN, M.D. AND THANH
TRAN, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the trial court’s judgment on
Michael S. Tran, M.D.’s and Thanh Tran’s claims for breach of contract and attorney’s fees and
render a take-nothing judgment in favor of Citibank (South Dakota), N.A. We otherwise
AFFIRM the trial court’s judgment. We REMAND this cause to the trial court for the
determination of attorney’s fees on Citibank’s counterclaim for breach of contract against Thanh
Tran.
        It is ORDERED that appellant Citibank (South Dakota), N.A. recover its costs of this
appeal from appellees Michael S. Tran, M.D. and Thanh Tran.


Judgment entered this 21st day of June, 2013.




                                                                          /Elizabeth Lang-Miers/
                                                                          ELIZABETH LANG-MIERS
                                                                          JUSTICE



                      The Honorable Mary Murphy, retired Justice, Court of Appeals for the Fifth District of Texas at Dallas, sat on the panel
during oral argument and submission but did not participate in the opinion or judgment.



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