Affirmed;   Opinion   Filed February 21, 2q13.




                                             In The
                                 Gimirt uf Appral6
                         FiftI! Otatrirt øf cxa at Oatla,2i
                                      No. 05-11-01336-CV

                            RODNEY K. MEISEL, Appellant
                                                 V.
                                US. BANK, N.A., Appellee

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-1O-08272

                                           OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                    Opinion by Justice Evans
       Rodney K. Meisel sued U.S. Bank for libel, alleging it made false and defamatory

statements about him to a consumer reporting agency after a check he deposited into his U.S.

Bank checking account was returned unpaid. The trial court granted U.S. Bank’s traditional

motion fbr summary judgment and ordered that Meisel take nothing on his claims. On appeal,

Meisel contends that because there was some evidence that U.S. Bank’s statements were

defamatory, false, and made with actual malice, the trial court erred in granting summary

judgment. After reviewing the record, we conclude summary judgment was proper because U.S.

Bank conclusively established that the statements on which Meisel bases his libel claims were

true. We therefore affirm the trial court’s judgment.
                                        BACKGROUND

         The followmg facts are taken from the summary judgment evidence, viewed in the light

most favorable to Meisel, the non—movant, In January 201 0, Meisel found an original signed

payroll check dated May 15, 2009 from his former employer, USA Shade and Fabric Structures,

Inc. Having no recollection or record of previously depositing the check, he contacted the bank

on which the check was drawn, Bank of Texas, N.A., which contirmed it had no record of

clearing the check, Meisel then deposited the check into his checking account with U.S. Bank.

That same day, Meisel informed USA Shade’s current controller that he was depositing the

check.

         Four days later, USA Shade marked the check for return, designating it as counterfeit

after a computer program revealed it had been previously deposited and paid in May 2009. The

next day, USA Shade recanted its counterfeit designation and so informed Bank of Texas. The

deposited check, however, was returned to U.S. Bank because it had been paid previously in

May of 2009. Despite receiving notice from Bank of Texas that the check was not counterfeit,

U.S. Bank closed Meisel’s checking and savings accounts and reported to ChexSysterns, a

consumer reporting agency, that Meisel’s accounts were closed. In its report, U.S. Bank selected

as its reason the code, “POTHER TRANS,” which the parties agree means, “transactions

involving items or checks belonging to another party.” Meisel filed this lawsuit against U.S.

Bank based on its statements to ChexSystems.      U.S. Bank filed traditional and no-evidence

motions for summary judgment on all of Meisel’s claims against it. The trial court granted U.S.

Bank’s motion for traditional summary judgment. Meisel appeals the trial court’s take-nothing

summary judgment on his libel claims.
                                              AN ALYS IS

            To prevail on its motion for traditional summary judgment, U.S. Bank must disprove at

least one essential element of each of Meisel’s claims or conclusively prove all elements of an

affirmative defense. See Randall’s food Mkts, Inc., v. Johnson, 891 S.W.2d 640, 644 (Tex.

1995). We review a summary judgment de novo to determine whether the movant established its

right to prevail as a matter of law.       See Shaun T. Allan Coip. v. 1fewlettPackard C’o., 237

S.W.3d 851, 855 (Tex. App.—Dallas 2007, pet. denied). Where, as here, the trial court does not

specify its basis for granting summary judgment, the judgment must be affirmed if any of the

grounds asserted in the motion has merit. See StarJ’elegrarn, inc. v, Doe, 915 S.W.2d 471, 473

(Tex. 1995). Among other grounds, U.S. Bank argued it was entitled to summary judgment on

all of Meisel’s claims because the statements it made to ChcxSystems were true. Based on the

record before us, we agree the trial court could have properly granted summary judgment in

favor of U.S. Bank on this ground.

   I.          Truth of the Statements

            Meisel’s libel claims against U.S. Bank are based exclusively on its reports to

ChexSystems that Meisel’s accounts were closed for “transactions involving items or checks

belonging to another party.” Libel is a written defamation that tends to: (1) injure a person’s

reputation, exposing the person to public hatred, contempt or ridicule, or financial injury, or (2)

impeach a person’s honesty, integrity, virtue, or reputation. See TEx. Civ. PRAC. & REM. CODE

ANN.    §   73.001 (West 2011). A true statement, however, is not actionable as libel. See TEx. Civ,

PRAC. & REM. CODE ANN.        §   73.005 (West 2011).

            We focus on two versions of the front and back of USA Shade’s check number 10573

dated May 15, 2009 and payable to Meisel for $3,328.62 that are in the record. The first version,

referred to in Meisel’s deposition as an 1RD (image replacement document), bears the legend,


                                                   —--
“This is a LL(AL COPY of your check, You can use it the same way you would use the original

check” and appears to be a substitute check under federal banking regulations.
                                                                  1 On the back of

the substitute check is Meisel’s signature and datestarnp of May 18, 2009. The second version

otUSA Shade’s check number 10573 is the one Meisel deposited with U.S. Bank on January 31,

2010. It appears to be an original check. The back of this check is also signed by Meisel. It is

datestamped February 1, 2010 and was returned unpaid.

             Meisel does not assert he was entitled to payment on the original check he deposited

after the substitute check had cleared. He also does not dispute that it was his signature on the

back of the substitute check or that the substitute check had cleared through USA Shade’s

account. Moreover, in response to questions during his deposition, Meisel agreed that the check

he deposited in 2010 belonged to USA Shade because USA Shade had already paid it. Fle also

agreed that it was a true statement that the check he submitted in 2010 was a transaction

involving items or checks belonging to another party.                      Meisel testified in his deposition,

however, that he had made an honest mistake because at the time he deposited the original with

U.S. Bank in 2010 he did not know the substitute check had already cleared in 2009.

             Meisel argues that the opinions he expressed during his deposition testimony as to the

truth of U.S. Bank’s statements to ChexSystems are not dispositive of whether the statements

were true. He contends the statements were in fact false because it is undisputed that he was in

possession of a check, an original check, made out to him. He argues these facts make him a

holder, and thus owner, of the check as a matter of law. In support of his position, Meisel relies

on Wells Fargo Bank, NA. v. Citizens Bank of Texas, N.A., 181 S.W.3d 790, 802 (Tex. App.—


         1
           In 2003, Congress passed the Check Clearing for the 21st Century Act, which authorized the electronic
imaging and processing ofchecks. See 12 U.S.C.A. § 5001—18 (West Supp. Parnph. 2012). A substitute check is
the legal equivalent of the original check Ibr all purposes provided it accurately represents all of the information on
the front and back of the original check as of the time the original check was truncated and contains the language
quoted in the text. See 12 U.S.C.A. § 5003(b).
Vvaco 200. pet. denied. and Ileinlich v .S’raie. 98$ S.W.2d 382. 384-85 (Tex. App-----Houston

[14th Dist.   I 999. pet. ref’d).   Both of these cases are inapposite to the check ownership

questions presented here in that neither of these cases involved the    attempted negotiation of a


check for the second time that the drawer had already paid the first time.

       Among other things Wells Fargo      Bank   addressed the duty owed by an intermediary hank

to the despositarv bank in the check collection process. lie/Is f’argo Bank, 1 81 S.W.3d at 801

02.   The court of appeals merely reiterated the Texas Supreme Court’s construction of section

4.20 1(a) of the Texas Business and Commerce Code that, whether or not a bank permits

immediate withdrawal of funds for a check that has not yet been collected, ownership of the

check remains with the depositor and the hank is merely an agent br the depositor rather than an

agent of the depositary bank. See Id.

        In Heiinlich, the court of appeals reversed the defendant’s conviction for theft.

concluding the evidence was legally insufficient to demonstrate that he appropriated property

owned by the complainant. Id. at 384. In reaching its conclusion, the court reasoned, “While the

complainant may have actually possessed the piece of paper called a check,’ Heimlich remained

the only person with a legal ownership interest in the thing of value the check signifled—---the

order to pay $5050.” Id. (emphasis in original). The court further noted that only Heimlich

could qualify as holder of the check and maintain a cause of action against the drawer for the

underlying obligation if the check was not paid. Id. at 385.

        Unlike the cases upon which Meisel relies, however, the check he possessed and

deposited with U.S. Bank had already been paid by USA Shade in May of 2009. Even if we

assume Meisel is correct in asserting that he was the holder of the check as defined by section

1.20 l(b)(21)(A) of the uniform commercial code, it does not necessarily follow that he is the

owner of the check.
       Whether Meisel was the owner of the check is a separate question from whether he was a

holder, See Leavings r. Mills, 175 S.W.3d 301, 309 1 0 (Tex. 2004) (recognizing distinction

between holder and owner of note) S/VS Fin., LLC. v.ABCO Homes, Inc., 167 F.3d 235, 239

(5th Cir. 1999) (“whether SMS is the owner of the note is a separate question which does not

affect whether it is the holder of the note.”); Beard v. Norwest Mortg., Inc., No. 10-06-00014

CV, 2007 WL 2051854, at *2 (Tex. App.—-Waco July 18, 2007 pet. denied) (UCC distinguishes

between owner and holder), The critical inquiry here is not whether Meisel was a holder of the

check, but rather whether the check belonged to Meisel at the time he deposited it with U.S.

bank on January 3 1.

       The evidence before us conclusively establishes that in 2010 Meisel had no ownership

interest in the check’s order to pay him $3,328.62 because he had already been paid that sum by

USA Shade in May 2009. See TEx. Bus. & C0M. CoDE ANN.         § 3.602(a) (West Supp. 2012) (an
instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the

instrument to a party entitled to enforce the instrument). Not only did USA Shade discharge its

liability on the check, it reacquired the check in its own right by payment of the underlying

obligation in May 2009. See TEx. Bus. & C0M. CoDE ANN.         § 3.601(a) (West 2002); see also
Siegler v. Ginther, 680 S.W.2d 886, 890 (Tex. App.—Houston [1st Dist.] 1984, no writ).

Because the evidence conclusively establishes that Meisel’s deposit of check 10573 in January

2010 was a transaction involving checks or items belonging to another party, U.S. Bank was

entitled to summary judgment on Meisel’s libel claims on the grounds that the statements it made

to ChexSystems were true.

       In reaching this conclusion, we necessarily reject Meisel’s contention that U.S. Bank’s

statements to ChexSystems falsely accused Meisel of the crime of theft or fraud.       There is

nothing in the record to support this contention. U.S. Bank’s statements merely communicated
to (‘hexSvstcms that ivleise[s accounts were closed for “transactions invol\ ing items or checks

belongin to anothcr party.’’ They did not accuse Mesel of theft or traud or ot having the intent

to steal or defraud. Cf. Ram/all v Food 4lkts., $9 I S.W.2d at 646 (statements that employee IctI

store without   payine.   br a wreath did not accuse employee of theft or of having the intent to

steal).

    II.      Summary Judgment on Claim Added after Motion Filed

          Meisel also argues even if summary judgment was proper on his claim for libel per se,

U.S. Bank was not entitled to summary judgment on his libel per quod claim because this claim

was not addressed in U.S. Bank’s summary judgment motion. Meisel filed an amended petition

claiming libel per quod for the first time after U.S. Bank filed its last supplemental motion for

summary judgment. It is well—settled that a party may not obtain summary judgment on a cause

of action not addressed in a summary judgment proceeding. Chess/icr      i. Southwestern   Bell Tel.

Co.. 65$ S.W.2d 563, 564 (Tex. 1983) (per curiain). When a motion for summary judgment is

sufficiently broad to encompass a later—filed cause of action, however, it need not be amended to

specifically address the new claim. See Dallas Fire/Ighters Ass ‘n v. Booth Research Group, Inc..

156 S.W.3d 188, l97-98 (Tex. App—Dallas 2005, pet. denied).

          U.S. Bank’s supplemental motion for summary judgment addressed “all claims and

causes of action against U.S. Bank in this case.” A defamatory statement constitutes libel per se

when the written or printed words in and of themselves are so obviously hurtful to the person

aggrieved by them that proof of injury is not required.       Columbia Vallei’ Reg. Med. Ctr. v.

Bannert, 112 S.W.3d 193, 199 (Tex. App.—Corpus Christi-Edinburg 2003, no pet.). When the

court must resort to innuendo or extrinsic evidence to conclude the statement was defamatory. it

is libel per quod and the plaintiff must prove injury and damages.      See Main v. Royal!, 348

S.W.3d 381, 390 (Tex. App.—Dallas 2011. no pet.).          On appeal, U.S. Bank argues that its
motion is applicable to Meisel’s claim for libel per quod.      In its supplemental motion for

summary judgment, U.S. Bank asserted that “all claims and causes of action against U.S. Bank

should be dismissed” because Meisel had admitted that U.S. Bank had not reported anything

false to any third party. This ground clearly encompasses Meisel’s libel per quod claim which is

based on the same statements and factual allegations applicable to his previously filed libel per

se claim. True statements are not actionable under either libel theory. See Tux. Civ. PRAC. &

REM. Coou ANN.   § 73.005,
       Based on the record before us, U.S. Bank conclusively established the truth of the

statements on which Meisel based both of his libel claims. Accordingly, the trial court properly

granted summary judgment on this ground. Our resolution of this issue makes it unnecessary to

address Meisel’s other arguments regarding the defamatory character of the statements or

whether U.S. Bank acted with actual malice.

       We affirm the trial court’s judgment.




       11 1336F.P05


                                                               EVANS
                                                  JUSTICE
                                  (!tiitrt uf Appca1
                         .FiftI! iutrirt nf     xa at lLtI1a
                                            JUDGMENT

RODNEY K. MEISEL, Appellant                          On Appeal from the 192nd Judicial District
                                                     Court, Dallas County, Texas
No. 05.l l-0l336-CV         V.                       Trial Court Cause No. DC-l0-08272.
                                                     Opinion delivered by Justice Evans.
U.S. BANK, NA., Appellee                             Justices FitzGerald and Fillmore
                                                     participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
        It is ORDERED that appellee U.S. BANK, N.A. recover its costs of this appeal from
appellant RODNEY K. MEISEL.


Judgment entered this February 2   ,   201 3.




                                                                EVANS
                                                    JUSTiCE
