Citibank (S.D.), N.A. v. Iran
| Decision Date | 21 June 2013 |
| Docket Number | No. 05-11-01423-CV,05-11-01423-CV |
| Parties | CITIBANK (SOUTH DAKOTA), N.A., Appellant/Cross-Appellee v. MICHAEL S. IRAN, M.D, AND THANH TRAN, Appeilees/Cross-Appellants |
| Court | Texas Court of Appeals |
REVERSE IN PART, AFFIRM IN PART, REMAND; and Opinion Filed June 21, 2013.
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Before Justices Lang-Miers and Fillmore1
Opinion by Justice Lang-Miers
Appellant/Cross-Appellee 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 take-nothing 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.
BACKGROUND
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 clay. 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. It 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.
Throughout 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.
THE TRANS' CLAIM FOR BREACH 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, L.P. 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 of 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. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). Evidence is legally sufficient if it rises to a level that would enable a reasonable and fair-minded 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); Affordable 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).
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 Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 454-55 (Tex. App,-Dallas 2012, pet. denied); Branch Banking & Trust Co. v. TCI Luna Ventures, LLC, No. 05-12-00653-CV, 2013 WL 1456651, at *3 (). "[T]he 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. Co., 358 S.W.3d at 455; see also Effel v. McGarry, 339 S.W.3d 789, 792 (Tex. App.—Dallas 2011, pet. denied) (). In other words, "[t]he 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.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). And "[e]ach contractshould be considered separately to determine 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 obligations of the parties, it is not an enforceable agreement. Effel, 339 S.W.3d at 792; see also Mem v. Huerta, 136 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2004, no pet.) ("It is well established that the terms of an oral contract must be clear, certain and definite.")
Discussion
The trial court submitted the following question to the jury:
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