Rose M. Geister v. Discover Bank
03-15-00471-CV
Tex. App.Nov 23, 2015Background
- Discover Bank sued Rose M. Geister in Hays County for breach of contract arising from an unpaid Discover credit-card balance; suit filed October 6, 2014.
- Discover moved for traditional summary judgment on April 2, 2015, supported by a sworn affidavit and business records showing the balance owed.
- Geister was served and appeared at the summary-judgment hearing but did not file a written response at least seven days before the hearing.
- The trial court granted summary judgment for Discover on July 13, 2015.
- Geister appealed and attempted to raise various defenses and submit additional documents on appeal (fraud, RICO, FDCPA, statute of frauds, consumer-protection claims, settlement correspondence, emails).
- Discover argues on appeal that Geister waived objections by failing to file a timely written response, that oral testimony is improper at summary-judgment hearings, and that new claims/evidence cannot be raised or considered on appeal.
Issues
| Issue | Plaintiff's Argument (Geister) | Defendant's Argument (Discover) | Held |
|---|---|---|---|
| Whether non-movant waived objections by not filing a timely written response | Geister contends trial procedures were unfair; implies her materials should be considered | Geister waived objections by failing to file a written response seven days before hearing per Tex. R. Civ. P. 166a(c) | Trial court properly rejected untimely objections; waiver affirmed |
| Whether oral testimony was permitted at the summary-judgment hearing | Geister argues she should have been allowed to testify and present evidence at hearing | Rule 166a(c) bars oral testimony at summary-judgment hearings; pro se status does not excuse compliance | Court found prohibition proper; no due-process violation |
| Whether new defenses/claims may be raised for first time on appeal | Geister raised fraud, RICO, FDCPA, deceptive-trade, statute-of-frauds, and consumer-protection claims on appeal | These defenses were not pled or raised in a written trial-court response and thus are waived | Court will not consider new theories first presented on appeal |
| Whether appellate court may consider new evidence filed with appellate briefs | Geister appended documents (settlement offers, emails, letters) to her brief and filed additional papers with the court | Documents not in trial-court record are outside the appellate record and cannot be considered | Appellate court should not consider evidence not part of the record on appeal |
Key Cases Cited
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (non-movant must file timely written response to preserve summary-judgment challenges)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of review for traditional summary judgment is de novo)
- Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000) (non-movant should assert all challenges in written response)
- Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex. 1978) (objections to summary-judgment proof must be made in trial court or are waived)
- Sabine Offshore Serv. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979) (appellate courts may not consider matters outside the appellate record)
- Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1997) (affidavit competency objections must be raised in trial court)
- Harrell v. Patel, 225 S.W.3d 1 (Tex. App.—El Paso 2005) (hearsay objections to affidavits must be raised in trial court)
- Winchek v. American Express Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007) (use and payment on a card can prove existence of contract)