Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/23/2015 10:57:58 AM JEFFREY D. KYLE Clerk Appeal No. 03-15-00471-CV THIRD COURT OF APPEALS 11/23/2015 10:57:58 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00471-CV *1 ACCEPTED [7944716] CLERK ____________________ In the Court of Appeals Third Judicial District AUSTIN, TX
____________________ ROSE M. GEISTER
Appellant
v.
DISCOVER BANK
Appellee ____________________ On Appeal from the County Court at Law Number Two Hays County, Texas
Cause No. 14-0679C The Honorable David Glickler, Judge Presiding BRIEF OF APPELLEE Respectfully submitted, By: /s/ Troy D. Bolen________________ TROY D. BOLEN State Bar Number 24006199 ELISE D. MANCHESTER State Bar Number 24070566 ATTORNEYS FOR APPELLEE ZWICKER & ASSOCIATES, P.C. Old Town Square 1 Chisholm Trail, Suite 301 Round Rock, Texas 78681 ZATXattorneys@zwickerpc.com 512-218-0488 512-218-0477 fax *2 LIST OF PARTIES AND THEIR COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a complete list of the names and addresses of all parties to the trial
court’s final judgment and all trial and appellate counsel.
Parties Counsel
ROSE M. GEISTER PRO SE
Appellant
DISCOVER BANK TROY D. BOLEN
Appellee ELISE D. MANCHESTER
ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Old Town Square 1 Chisholm Trail, Suite 301 Round Rock, Texas 78681 512-218-0488 512-218-0477 fax ZATXattorneys@zwickerpc.com *3 TABLE OF CONTENTS INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . 5
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Appellant Waived Her Objections to Appellee’s Motion for Summary Judgment by Failing to File a Timely, Written Response. . . . . . . . . . 7 Oral Testimony is not Permitted at Summary Judgment Hearings . . . 11 Appellant is Precluded from Raising New Claims on Appeal. . . . . . . 12 Appellant May Not Submit New or Additional Evidence on Appeal . . 13 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 *4 INDEX OF AUTHORITIES Case Law
City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671 (Tex. 1979). . 7, 8, 12
Harrell v. Patel , 225 S.W.3d 1 (Tex. App. —El Paso 2005, pet. denied) . . . . . . 9
Haynes v. Haynes , 178 S.W.3d 350 (Tex.App.—Houston [14 th Dist.]
2005, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Life Ins. Co. of Va. v. Gar-Dal, Inc. , 570 S.W.2d 378 (Tex. 1978) . . . . . . . . . . . 9
Loera v. Interstate Inv. Corp. , 93 S.W.3d 224 (Tex. App. —Houston
[14 th Dist.] 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lopez v. Munoz, Hockema & Reed, L.L.P. , 22 S.W.3d 857 (Tex. 2000) . . . . . . . 8
Martinez v. Leeds , 218 S.W.3d 845 (Tex.App.—El Paso 2007, no pet.) . . . . . . 11
Morriss v. Enron Oil & Gas Co. , 948 S.W.2d 858
(Tex.App.—San Antonio 1997, no writ.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Rios v. Northwestern Steel & Wire Co. , 974 S.W.2d 932
(Tex.App.—Houston [14 th Dist.] 1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Rizkallah v. Conner , 952 S.W.2d 580 (Tex.App. —Houston
[1 st Dist.] 1997, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sabine Offshore Serv. v. City of Port Arthur , 595 S.W.2d 840 (Tex. 1979) . . . . 13
Samara v. Samara , 52 S.W.3d 455 (Tex. App. —Houston
[1 st Dist.] 2001, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Seidner v. Citibank , 201 S.W.3d 332 (Tex.App. —Houston
[14 th Dist.] 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 *5 Till v. Thomas , 10 S.W.3d 730 (Tex. App. — Houston [1 st Dist.] 1999, no pet.) . 13
Valence Oper. Co. v. Dorsett , 164 S.W.3d 656 (Tex. 2005) . . . . . . . . . . . . . . . . . 7
Wiley-Reiter Corp. v. Groce, 693 S.W.2d 701
(Tex. App.—Houston [14th Dist.] 1985, no writ) . . . . . . . . . . . . . . . . . . . . . . . . 12
Winchek v. Am. Express Travel Related Servs. Co. , 232 S.W.3d 197
(Tex. App.—Houston [1st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutes
Texas Rule of Civil Procedure 166a . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 7, 8, 11
STATEMENT OF THE CASE This is an appeal from the July 13, 2015 order granting summary judgment in favor of Appellee, Discover Bank, against Appellant, Rose M. Geister. (CR. 59-
60). Appellee’s underlying action is for breach of contract arising from an unpaid
balance due on Appellant’s Discover Bank credit card account. (CR. 4-6).
Appellee filed a Motion for Summary Judgment. Appellant did not file a response to Appellee’s Motion for Summary Judgment. (CR. 72-73). After notice
and hearing, summary judgment was granted in favor of Appellee. (CR. 59-60).
Appellant filed a Notice of Appeal on July 21, 2015. (CR. 61-63).
STATEMENT REGARDING ORAL ARGUMENT Appellee does not request oral argument for this appeal.
ISSUES PRESENTED ISSUE ONE: APPELLANT WAIVED HER OBJECTIONS TO
APPELLEE’S MOTION FOR SUMMARY JUDGMENT BY FAILING TO FILE A TIMELY, WRITTEN RESPONSE ISSUE TWO: ORAL TESTIMONY IS NOT PERMITTED AT SUMMARY
JUDGMENT HEARINGS
ISSUE THREE: APPELLANT IS PRECLUDED FROM ASSERTING NEW
DEFENSES ON APPEAL
ISSUE FOUR: APPELLANT MAY NOT SUBMIT NEW OR ADDITIONAL
EVIDENCE ON APPEAL
STATEMENT OF FACTS Appellee, Discover Bank, filed suit against Appellant, Rose M. Geister, on October 6, 2014 for breach of contract arising from charges associated with
Appellant’s Discover Bank credit card account. (CR. 4-6). Appellant was served
with the lawsuit November 3, 2014. (CR. 72). Appellee filed a Traditional Motion
for Summary Judgment on April 2, 2015 requesting that judgment be rendered for
Appellee on its breach of contract claim against Appellant. (CR. 7-11). Appellant
appeared at the summary judgment hearing but did not file a written response to
Appellee’s Motion for Summary Judgment. (CR. 72-73, RR. 2). After notice and
hearing, summary judgment was granted in favor of Appellee on July 13, 2015.
(CR. 59-60). Appellant filed a Notice of Appeal on July 21, 2015. (CR. 61-63). *7 SUMMARY OF THE ARGUMENT The trial court’s summary judgment should be affirmed because Appellant waived her objections to Appellee’s Motion for Summary Judgment by failing to
file a timely, written response. Appellant was not permitted to testify at the
summary judgment hearing because oral testimony is not allowed during summary
judgment proceedings. Furthermore, Appellant is not permitted to assert new
defenses or present new evidence on appeal. The trial court’s judgment was
proper, in accordance with the rules regarding summary judgment practice, and
should be upheld by this Court
ARGUMENT AND AUTHORITIES Standard of Review for Summary Judgment A traditional motion for summary judgment is reviewed on appeal de novo.
Valence Oper. Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).
Appellant Waived Her Objections to Appellee’s Motion for Summary Judgment By Failing to File a Timely, Written Response Appellant did not file a written response to Appellee’s motion for summary judgment thus waiving her objections on appeal. A response to a motion for
summary judgment must be in writing and must be filed and served at least seven
days before the hearing. Tex. R. Civ. P. 166a(c); See City of Houston v. Clear *8 Creek Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979). In the summary judgment
context, the non-movant should assert all of its challenges to the summary
judgment in its response. See Tex. R. Civ. P. 166a(c); See Lopez v. Munoz,
Hockema & Reed, L.L.P. , 22 S.W.3d 857, 862 (Tex. 2000); See also City of
Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678-79 (Tex. 1979). On
appeal, the appellate court will not consider any issues as grounds for reversal that
were not presented to the trial court by a written response. Id. A party must object
in writing to any formal deficiencies in the summary judgment proof, or the party
waives the objection. Tex. R. Civ. P. 166a(f); City of Houston , 589 S.W.2d at 677.
None of the objections raised in Appellant’s brief were properly asserted before the
trial court in a written response filed seven days prior to the summary judgment
hearing.
Appellant objects for the first time on appeal to the content of Appellee’s summary judgment affidavit. The party objecting to the content of an affidavit
submitted to the trial court must identify the specific statements in the affidavit that
are objectionable and state why they are objectionable. See Haynes v. Haynes , 178
S.W.3d 350, 355 (Tex.App.—Houston [14 th Dist.] 2005, pet. denied). Appellant
failed to file a written response or produce any evidence before the trial court *9 showing that Appellee’s summary judgment evidence was fraudulent or otherwise
inadmissible.
Appellant also objects for the first time on appeal to the competency of Appellee’s summary judgment affiant. The objection that an affidavit is made by
an incompetent witness must be made in the trial court or else the objection is
waived. Rizkallah v. Conner , 952 S.W.2d 580, 586 (Tex.App. —Houston [1 st
Dist.] 1997, no writ).
Next Appellant objects on appeal that Appellant’s summary judgment affidavit contains hearsay testimony. An objection that testimony contains hearsay
must be made before the trial court, or else it is waived. Harrell v. Patel , 225
S.W.3d 1, 6 (Tex. App. —El Paso 2005, pet. denied). Unless a party objects to
hearsay evidence at trial, the evidence will support a grant of summary judgment.
Id. Similarly, the objection that an affidavit does not lay the proper predicate for
admissibility must be made at trial or else it is waived. Life Ins. Co. of Va. v. Gar-
Dal, Inc. , 570 S.W.2d 378, 380-81 (Tex. 1978); Seidner v. Citibank , 201 S.W.3d
332, 334-35 (Tex.App.—Houston [14 th Dist.] 2006, pet. denied).
Appellee presented competent, admissible summary judgment evidence in support of its Motion for Summary Judgment. Appellee’s summary judgment
affidavit states that the affidavit is made on the basis of the affiant’s personal *10 knowledge and the affidavit is properly sworn. (CR. 14-15). The documentary
evidence consisting of the bank’s business records attached to the affidavit shows
the balance due and owing on Appellant’s credit card account and the evidence
admitted by the trial court is sufficient to support the court’s award of a summary
judgment in Appellee’s favor. (CR. 17-56).
Appellant argues on appeal that a signed contract should have been produced at trial. However, the evidence admitted before the trial court of the
defendant’s acceptance and use of the credit card and then making payments on the
account demonstrates the existence of an contract between the parties. See
Winchek v. Am. Express Travel Related Servs. Co. , 232 S.W.3d 197, 204 (Tex.
App.—Houston [1st Dist.] 2007, no pet.).
Appellant failed to properly and timely raise any of her objections in the trial court by way of a written response to Appellee’s Motion for Summary Judgment.
As a result, Appellant’s defenses and objections to the summary judgment motion
were waived and should not be considered for the first time on appeal. The trial
court’s decision to grant Appellee’s Motion for Summary Judgment was proper
based on the pleadings and evidence presented to the trial court. There is no
reversible error presented on this appeal. *11 Oral Testimony is Not Permitted at Summary Judgment Hearings Appellant argues that her Due Process rights were violated as a result of not being allowed to testify and present evidence at the summary judgment hearing.
Texas Rule of Civil Procedure 166a(c) provides that no oral testimony shall be
received at a hearing on a motion for summary judgment. The trial court adhered
to this rule by prohibiting Appellant from testifying at the summary judgment
hearing. Further, the trial court did not consider any documentary evidence
presented by the Appellant because it was not filed with a written response seven
(7) days prior to the hearing in accordance with Texas Rule of Civil Procedure
166a(c). Appellant’s rights were not violated by the trial court’s actions. On the
contrary, the trial court was applying the rules applicable to summary judgment
proceedings. These rules apply to all litigants regardless of whether the party is
proceeding pro se or is represented by counsel. See Martinez v. Leeds , 218 S.W.3d
845, 848 (Tex.App.—El Paso 2007, no pet.). A party acting pro se must comply
with substantive law and procedural rules. Id.
Appellant’s allegations regarding the court reporter’s record are unsubstantiated and irrelevant to this appeal. In an appeal of a summary judgment
case, a reporter’s record is generally not filed because Texas Rule of Civil
Procedure 166a provides that no oral testimony shall be received at the hearing. *12 Rios v. Northwestern Steel & Wire Co. , 974 S.W.2d 932, 936 (Tex.App.—Houston
[14 th Dist.] 1998, no pet.). No reporter’s record is necessary in the summary
judgment context because no oral testimony shall be considered. See id . The
reporter’s record and Appellant’s various allegations regarding the reporter’s
record are not relevant or material to this appeal.
Appellant is Precluded from Raising New Defenses and Claims on Appeal Appellant’s brief asserts various claims, causes of action, and defenses, including but not limited to fraud, RICO violations, violations of the Fair Debt
Collection Practices Act, deceptive trade, statute of frauds, and state consumer
protection laws. None of these claims or defenses were properly asserted in the
trial court and cannot be asserted for the first time on appeal. It is well-settled that
an appellate court should not decide a case on a theory different from that on which
it was pleaded and tried. Loera v. Interstate Inv. Corp. , 93 S.W.3d 224, 228 (Tex.
App. —Houston [14 th Dist.] 2002) citing Wiley-Reiter Corp. v. Groce, 693 S.W.2d
701, 704 (Tex. App.—Houston [14th Dist.] 1985, no writ). The trial court’s grant
of summary judgment will not be reversed on a ground that was not expressly
presented to the trial court by a written motion, answer, or other response to the
motion for summary judgment. Morriss v. Enron Oil & Gas Co. , 948 S.W.2d 858,
871 (Tex.App.—San Antonio 1997, no writ.). Issues a non-movant contends *13 defeat the grant of summary judgment that are not expressly presented to the trial
court by written answer or other written response to the summary judgment motion
are waived on appeal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 677 (Tex. 1979). Appellant did not include any of these defenses or claims in
her pleadings before the trial court. Therefore Appellant did not preserve these
issues for review on appeal.
Appellant May Not Submit New or Additional Evidence on Appeal Appellant is prohibited from presenting new or additional evidence on appeal that is not a part of the trial court’s record. An appellate court may not
consider matters outside the appellate record. Sabine Offshore Serv. v. City of Port
Arthur , 595 S.W.2d 840, 841 (Tex. 1979). The attachment of documents as
exhibits or appendices to briefs is not formal inclusion in the record on appeal and,
thus, the documents cannot be considered. See Samara v. Samara , 52 S.W.3d 455,
456 n.1 (Tex. App. —Houston [1 st Dist.] 2001, pet. denied); Till v. Thomas , 10
S.W.3d 730, 733-34 (Tex. App. — Houston [1 st Dist.] 1999, no pet.).
Appellant has attached to her brief, as well as filed independently with the Court of Appeals, a number of documents that are not a part of the record on
appeal, including letters to the Clerk of the Court of Appeals, settlement
correspondence between the parties, proposed settlement documents sent to *14 Appellant after the summary judgment was signed, email correspondence with
Freedom Debt Relief, and a letter filed September 23, 2015 with the Court of
Appeals with various documents attached. (Appellant’s Brief, Appendix C & D).
None of the aforementioned documentation was included in the record on appeal
and should not be considered by the Court for determination of this appeal.
PRAYER
WHEREFORE, for the foregoing reasons as stated herein, Appellee
respectfully requests that the trial court’s order granting summary judgment be
affirmed in its entirety. Appellant further requests any and all such other relief to
which it may be entitled.
Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Old Town Square 1 Chisholm Trail, Suite 301 Round Rock, TX 78681 512-218-0488
512-218-0477 fax ZATXattorneys@zwickerpc.com By: /s/ Troy D. Bolen Troy D. Bolen State Bar Number 24006199 Elise D. Manchester State Bar Number 24070566 Attorneys for Appellee DISCOVER BANK *15 CERTIFICATE OF SERVICE I certify that I have served a true copy of the above Brief of Appellee on all parties, which are listed below, via certified mail, return receipt requested and
regular mail on November 20, 2015 as follows:
ROSE MARIE GEISTER
156 Granite Shoals Drive
Kyle, Texas 78640
By: /s/ Troy D. Bolen Troy D. Bolen State Bar Number 24006199 Elise D. Manchester State Bar Number 24070566 Attorneys for Appellee DISCOVER BANK CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the number of words in the above Brief of Appellee is 3377.
By: /s/ Troy D. Bolen Troy D. Bolen State Bar Number 24006199 Elise D. Manchester State Bar Number 24070566 Attorneys for Appellee DISCOVER BANK